^  UNIVERSITY 

RYI        OF  CALIFORNIA 
LOS  ANGELES 

LAW  LIBRARY 

FACULTY   LIBRARY 


»'        VT  ./-,"•  -  -,  -i 


Attorney  At     a/y 
KYEGATE,  MONTANA 


OF 


CASES  ARGUED  AND  DETERMINED 


IN  THE 


SUPREME  COURT 


OF 


MONTANA  TERRITORY 


FROM  DECEMBER  TERM,  1868,  TO  JANUARY  TERM,  1873,  INCLUSIVE. 


BY  HENRY  N.  BLAKE 


VOLUME  I. 


SAN  FRANCISCO,  CAL.: 

BANCROFT-WHITNEY  COMPANY,  PUBLISHERS. 

1911 


Entered,  according  to  the  act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-three 

BY  HENRY  N.  BLAKE, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


COPYKIGHT,  1911 
BY 

BANCROFT- WHITNEY  CO. 


JUDGES  OF  THK  SUPKKMK  COURT 


FROM  THE  ORGANIZATION  OF  THE  TERRITORY  AND  DURING  THE  TIM« 
OF  THESE  REPORTS. 


CHIEF  JUSTICES  : 

HON.  HEZEKIAH  L.  HOSMER, 
"       HENRY  L.  WARREN, 
"       DECIUS  S.  WADE, 

ASSOCIATE  JUSTICES: 

HON.  LORENZO  P.  WILLISTON, 
"      LYMAN  E.  MUNSON, 
"      HIRAM  KNOWLES, 
"      GEORGE  G.  SYMES, 
"      JOHN  L.  MURPHY, 
"      FRANCIS  G.  SERV1S, 


APPOINTED : 

JUNE  30,  1864. 

JULY  18,  1868,  vice  HOSMER. 

MARCH  17,  1871,  vice  WARREN 

APPOINTED: 
JUNE  22, 1864. 
MARCH  11,  1865. 
JULY  18,  1868,  vice  WILLISTOS 
APRIL  5,  1869,  vice  MUNSON. 
JANUARY  27, 1871,  vice  SYMES 
SEPT.  til,  1872,  vice  MURPHY. 


OFFICERS  OF  THE  SUPREME  COURT 


THE  ORGANIZATION   O}    THE  TERRITORY. 


CLERKS: 


A.  M.  TORBET,     - 
J.  ALLEN  HOSMER, 
LUCIUS  S.  PECK, 
ISAAC  R.   ALDEN, 


Appointed  MAY  17,  1865. 

AUGUST  6,  1866. 
JUNK  12,  1867. 
JANUARY  13.  1870. 


UNITED  STATES  MARSHALS: 

GEORGK  M.   PINNKY,  Appointed  FEUKUA  IJY  20,  1865 

NEIL  HOWIE,  -  "  MARCH  18,  1867. 

WILLIAM  F.  WHKELER,  -        -        -  DECEMBER  21. 1869, 


UNITED  STATES  ATTORNEYS: 

KDWAHI)  I?.  XE ALLEY,  Appointed  JUNK  22,  1S»>4. 

MOSES  VEALF..     -  APRIL  20.  1867. 

ALEXANDER  E.  MAYHEW,  JULY  11.  1868. 

HENRY  X.  BLAKE,    -  APRIL  22.  1869. 

rOHXKLTUS  HEDGES.  -  MARCH  3.  1871. 

MKRRTTT  C.   I'AGK.     -----  "            MAY  17,  1872. 


REPORTER : 
IIKXRY    X.    BL\KK.  ;ipp«>infod  J.\NM*ARY  9, 


Adopted  at  the  January  Term  thereof,  A.  D.  1871. 

I.  In  all  cases  where  an  appeal  is  perfected,  and  the  statement 
settled  (if  there  be  one)  twenty  days  before  the  commencement  of 
the  next  succeeding  term  of  this  court,  the  transcript  of  record 
shall  be  filed  on  or  before  the  first  day  of  such  term. 

[I.  If  the  transcript  of  the  record  is  not  filed  within  the  time 
prescribed,  the  appeal  may  be  dismissed,  on  motion,  upon  satis- 
factory evidence  of  such  omission. 

A  cause  so  dismissed  may  be  restored  during  the  same  term,  upon 
good  cause  shown,  on  notice  to  the  respondent. 

111.  On  such  motion  to  dismiss  the  appeal,  there  shall  be  pre- 
sented the  certificate  of  the  clerk  below,  under  the  seal  of  the  court, 
certifying  the  amount  or  character  of  the  judgment  or  order 
appealed  from;  the  date  of  its  rendition;  the  fact  and  date  of  the 
iiiing  of  the  notice  of  appeal;  the  fact  and  date  of  filing  the  under- 
lakiug  oil  appeal;  the  fact  and  time  of  settlement  of  the  statement, 
if  there  be  one;  and  also  that  the  appellant  has  received  a  duly 
certified  transcript,  or  that  such  transcript  has  not  been  requested 
by  appellant ;  or,  if  requested,  that  appellant  has  not  paid  the  fees 
therefor,  if  such  payment  have  been  demanded. 

[V.  All  transcripts  of  records  hereafter  sent  to  this  court  shall 
be  on  paper  of  uniform  si/e,  according  to  a  sample  to  be  furnished 
by  the  clerk  of  this  court,  with  a  blank  margin  one  and  a  half 
inches  wide,  at  the  top,  bottom  and  side  of  each  page,  and  all 
pleadings,  proceedings  and  evidence  shall  be  chronologically  arranged, 
and  the  pages  of  the  transcript  shall  he  numbered,  and  but  one  side 
of  the  leaves  shall  be  written  upon. 

V".  Each  transcript  shall  be  prefaced  with  or  have  annexed  an 
alphabetical  index  to  its  contents,  specifying  the  page  of  each 
separate  paper,  order  or  proceeding,  and  of  the  testimony  of  each 
witness,  aud  shall  have  blank  or  ttv  sheet  covers. 


6  RULES  OF  THE  SUPKEME  COUET. 

VI.  The  transcript  shall  be  fastened  together  on  the  left  side  of 
the  pages,  so  that  the  same  may  be  secured  and  every  part  con- 
veniently read. 

VII.  The  transcript  shall  be  written  in  a  fair,  legible  hand,  and 
each  paper  or  order  shall  be  separately  inserted. 

VIII.  The  party  filing  the  transcript  may,  if  he  so  desire,  have 
the  same  printed,  but  the  expense  of  printing  shall  not  be  allowed 
or  taxed  as  costs. 

IX.  No  transcript  which  fails  to  conform  to  the  requirements  of 
these  rules  shall  be  filed  by  the  clerk. 

X.  The  transcript,  on  appeal  from  a  final  judgment,  shall  contain 
copies  of  the  notice  of  appeal;  the  undertaking  or  undertakings 
executed  by  appellant  on  the  appeal ;  the  pleadings  on  which  are 
formed  the  issues  tried  in  the  cause ;  the  statement,  if  there  be  one ; 
and  such  other  parts  of  the  judgment  roll  as  are  necessary  to  pre- 
sent or  explain  the  points  relied  on,  and  no  more. 

On  appeal  from  a  judgment  rendered  on  an  appeal,  or  from  an 
order,  the  transcript  shall  contain  copies  of  the  notice  of  appeal; 
the  undertaking  or  undertakings  filed  by  appellant;  the  judgment 
or  order  appealed  from,  and  of  the  papers  used  on  the  hearing  in  the 
court. 

XI.  The  appellant  shall  be  charged  with  the  duty  of  having  the 
transcript  perfected  in  accordance  with  the  statute  and  these  rules : 
Provided.  That  if  it  shall  appear  to  the  satisfaction  of  the  court 
tli at  the  appellant  has  filed  his  prcecipe  in  time  with  the  clerk  of 
the  court  below,  directing  the  preparation  of  the  transcript,  and 
specifying  what  portions  of  the  record  the  same  shall  contain,  then, 
in  case  the  transcript  shall  be  imperfect  and  shall  not  conform  to 
The  requirements  of  the  prcecipe,  and  sufficient  reason  for  such  non- 
conformity does  not  appear,  the  appeal  shall  not  be  dismissed,  and 
on  motion  of  the  appellant,  a  rule  shall  be  entered  upon  the  clerk 
below  to  correct  the  transcript  within  such  time  as  may  be  allowed 
by  the  court  below. 

XII.  For  the  purpose  of  correcting  any  error  or  defect  in  the 
transcript,  either  party  may  suggest  the  same  in  writing,  and,  upon 
good  cause  shown,  obtain  an  order  that  the  proper  clerk  certify  to 
this  court  the  whole  or  part  of  the  record,  as  may  be  required.    If 
the  attorney  or  counsel  of  the  adverse  party  be  absent,  or  the  fact 
of  the  alleged  error  or  defect  be  disputed,  the  suggestion  must  be 


RULES  OF  THE  SUPREME  COURT.  7 

accompanied  by  an  affidavit,  showing  the  existence  of  the.  alleged 
error  or  defect. 

XIII.  Proof  of  service  of  notice  of  appeal  on  the  respondent 
may  be  made  by  affidavit,  and  in  all  cases  proof  of  service  of  such 
notice  or  waiver  thereof  shall  be  filed  in  this  court  five  days  at  least 
before  the  commencement  of  the  term  to  which  the  appeal  is  taken. 

XIV.  Exceptions  to  the  transcript,  statement,  undertaking  on 
appeal,  notice  of  appeal,  or  to  its  service,  or  proof  of  service,  or  any 
technical  objection  to  the  record  affecting  the  right  of  the  appellant 
to  be  heard  on  the  errors  assigned,  must  be  taken  at  least  one  day 
before  the  day  on  which  the  cause  may  be  set  down  for  hearing,  and 
must  be  noted  in  writing  and  filed  at  least  one  day  before  the  argu- 
ment, unless  the  appellant  otherwise  consent,  but  in  all  cases  such 
objection  must  be  presented  to  the  court  before  the  argument  on 
the  merits. 

XV.  Upon  the  death  or  disability  of  a  party,  or  transfer  of  hia 
interest  in  the  suit,  pending  an  appeal,  such  fact  shall  be  suggested 
in  writing  to  the  court ;  and  if  the  cause  of  action  survive  or  con- 
tinue, upon  motion  of  the  legal  or  personal  representative  of  such 
party,  or  of  any  party  to  the  record,  an  order  shall  be  made  substi- 
tuting such  representative  in  the  cause,  and  the  cause  shall  proceed 
as  in  other  cases. 

XVI.  The  calendar  of  each  term  of  this  court  shall  consist  only 
of  those  causes  in  which  the  transcript  shall  have  been  filed  in  this 
court  five  days  before  the  commencement  of  the  term,  unless  by 
written  consent  of  the  parties :  Provided,  That  all  cases  in  which 
the  appeal  is  perfected  as  provided  in  rule  first,  and  the  transcript 
is  not  filed  five  days  before  the  first  day  of  the  term,  may  be  placed 
on  the  calendar,  on  motion  of  the  respondent,  upon  the  filing  of  the 
transcript,  during  the  first  week  of  the  term. 

XVII.  Causes  shall  be  placed  on  the  calendar  in  the  order  in 
which  the  transcripts  are  filed,  and,  except  when  brought  to  hearing 
upon  notice  or  agreement  of  the  parties,  shall  be  disposed  of  in  the 
order  in  which  they  appear  upon  the  calendar. 

XVIII.  The  appellant  and  respondent  shall  furnish  to  each  other 
a  copy  of  his  points  and  authorities,  at  least  one  day  before  the 
commencement  of  the  argument ;  and,  at  or  before  the  commence- 
ment of  the  argument,  shall  furnish  to  each  of  the  justices  a  copy 
of  the  same,  and  shall  file  a  copy  of  the  same  with  the  clerk ;  or 
either  party  may  file  one  copy  thereof  with  the  clerk,  who  shall 


RULES  OF  THE  SUPREME  COURT. 

3ause  the  requisite  copies  to  be  made,  and  in  case  either  party  shall 
fail  to  furnish  such  copy  to  the  opposite  party,  as  required  by  this 
rule,  he  shall  be  deemed  to  waive  his  right  to  argue  such  cause 
orally,  except  by  consent;  and  no  brief  of  his  points  and  authori- 
ties, not  filed  in  accordance  with  this  rule,  will  be  considered  by 
the  court,  except  after  at  least  one  day's  notice  of  the  filing  of  the 
same  to  the  opposite  party,  who  shall  have  such  time  as  may  be 
allowed  by  the  court,  after  the  filing  thereof,  to  file  a  reply  thereto. 

XIX.  When  briefs  or  arguments  are  filed,  one  copy  shall   be 
delivered  to  the  adverse  party,  one  to  each  of  the  justices,  and  one 
to  the  reporter. 

XX.  No  more  than  two  counsel  will  be  heard  upon  a  side,  and 
not  over  one  and  a  half  hour  on  a  side  for  argument  will  be  allowed. 
unless  permission  be  asked  and  allowed  before  the  argument  com- 
mences. 

XXI.  The  records  and  reports  must,  in  all  cases,  show  whether  a 
decision  was  made  by  a  full  bench,  and  which  of  the  judges,  if 
either,  dissented  therefrom. 

XXII.  When  the  court  takes  a  case  under  advisement,  it  shall 
rile  its  opinion  at  the  next  term  thereafter.     No  cause  is  decided 
until  the  opinion  in  writing  is  filed  with  the  clerk. 

XXIII.  In  any  case,  if  the  court  is  satisfied  from  the  record  that 
vhe  appeal  was  taken  for  delay,  such  damages  shall  be  awarded  as 
may,  undei  the  circumstances,  be  proper,  and  as  shall  tend  to  pre- 
vent the  taking  of  appeals  for  delay. 

XXIV.  Appeals  in  criminal  cases  shall  take  precedence  of  all 
other  business. 

XXV.  When  a  judgment  of  the  supreme  court  is  rendered,  such 
judgment  and  the  opinion,  when  finally  corrected,  must  be  recorded. 
and   a  certified  copy  of  the  judgment,  with   proper  instructions, 
must  be  forthwith   remitted  to   the  clerk  of  the  district  court  in 
which  the  judgment  appealed  from  was  rendered,  and  a  copy  of  the 
•  •pinion   shall  be  remitted,  upon   application  of  either  party,  and 
payment  of  the  costs  thereof,  within  ten  days  after  the  close  of  the 
ti-nn  at  which  such  opinion  was  filed. 

XXVI.  In  case  any  justice  of  this  court,  while  holding  a  district 
court,  shall  refuse  to  allow  an  exception,  or  to  certify  to  a  statement, 
in  accordance  with  facts,  upon  presentation  to  this  court,  or  to  any 
two  justices  thereof,  in  vacation,  of  a  petition  verified  by  the  affi- 
davit of  any  person  aggrieved   therebv,  or  by  the  attorney  of  such 


RULES  OF  THE  SUPREME  COURT.  9 

person,  this  court,  or  such  justices  thereof,  shall,  if  suffici  ,nt  rtasor 
appear  therefor,  sign  an  order  granting  leave  to  suoa  person  to 
prove  the  facts  in  relation  to  such  exception  or  statement.  Such 
proof  shall  be  made  by  deposition,  taken  after  three  days'  notice  to 
the  opposite  party,  or  his  attorney,  of  the  time  and  place  of  taking 
the  same,  which  shall  contain  a  copy  of  the  order  granting  such 
leave,  and  within  ten  days  after  the  taking  of  such  depositions  shall 
be  concluded,  the  opposite  party  may,  after  like  notice  and  in  like 
manner,  take  depositions  of  witnesses  in  relation  thereto.  Such 
depositions  shall  be  taken  and  certified  before  the  same  persons  and 
in  the  same  manner,  in  all  respects,  as  is  provided  by  law  in  the 
case  of  depositions  taken  within  this  territory. 

XX VII.  All  motions  for  rehearing  shall  be  in  writing,  and  filed 
within  three  days  after  the  judgment  is  rendered  or  order  made, 
and  during  the  term  at  which  the  judgment  or  order  is  rendered  or 
made. 

XXVIII.  No  transcript  or  paper  filed  in  a  cause  shall  be  taken 
from  the  court  room  or  clerk's  office,  except  by  written  order  of  the 
court,  or  one  of  the  justices. 

XXIX.  The  party  filing  the  transcript  shall  be  primarily  liable 
for  costs.     In  no  civil  case  shall  the  clerk  be  required  to  remit  the 
final  papers  until  the  costs  accrued  in  this  court  are  paid. 

Hii.lrx  adopted  at  the  August  Term,  A.  D.  1871. 
i.   A;  or  before  filing  the  transcript  in  each  case  on  appeal,  the 
party  ii 1 11114  lne  same  shall  deposit  with  the  clerk  the  sum  of  twenty- 
five  dollars,  to  be  applied  on  the  payment  of  the  costs  in  this  court. 

II.  In  all  cases  at  law  in  which  the  supreme  court  has  original 
jurisdiction,  the  prawipe  for  a  summons  shall  specify  the  rule  day 
upon  which  the  summons  shall  direct  the  defendant  to  appear;  and 
on  or  IK- fore  such  day  the  declaration  shall  be  filed;  and  at  the  rule 
ilav  next  succeeding,  except  upon  an  order  or  notice  from  u  justice 
of  this  court,  the  defendant  shall  plead  to  the  same. 

III.  In  cases  commenced  in  this  court,  which  may  be  tried  before 
a  justice  of  the  supreme  court  while  holding  a  district  court  in  hid 
district,,  the  clerk,  upon  the  application  of  either  party,  shall  send 
and  certify  the  case  and  papers  to  the  court  below,  where,  upon 
reasonable  notice  to  the  other,  either  party  may  bring  the  case  tc 
1  Mai. 

2 


ATTORNEYS  AND  COUNSELORS  AT  LAW, 

JLCBN8BD  AND  ADMITTED  FROM  THE  ORGANIZATION  OF  THE  TERRITORY 
TO  THE  JANUARY  TERM,  1878. 


Arick,  Rufus  E Helena. 

Bagg,  Charles  S Deer  Lodge  City. 

Beattie,  Alexander  H Helena. 

Beem,  Martin-t , Virginia  City. 

Bissell,  Gaylord  G.t Virginia  City. 

Blake,  Henry  N Virginia  City. 

Borton,  Lewis  W.t Virginia  City. 

Brown,  James  H.i Deer  Lodge  City. 

Brown,  William  L.+ Virginia  City. 

Bruce,  John  P Virginia  City. 

Bullard,  Masseua Helena. 

Burdick,  Henryf Helena. 

Burns,  H.f Virginia  City. 

Callaway,  James  E Virginia  City. 

Carpenter,  A.  M.  S . .  Virginia  City. 

Cavanaugh,  James  M.t Helena. 

Chadwick,  Walter  F Helena. 

Chiles,  William  H.t Virginia  City. 

Chumasero,  William . , Helena. 

Clagett,  William  H Deer  Lodge  City. 

Colemau,  George  S Bozeman. 

Comly,  Harry  R Helena. 

Cook,  ./ erryf Virginia  City. 

Corum,  John  W Helena. 

Cowan,  David-f- Virginia  City. 

Cowan,  George  F Radersburg. 

Cullen,  William  E Helena. 

Davis,  Alexander)- Virginia  City. 

Davis,  Joseph  J Bozeman. 

Deimliug,  Francis  C Virginia  City. 

Desbeck,  John  t Helena. 

Dewey,  W.  W Virginia  City. 

Dimsdale,  Thomas  J.* Virginia  City. 

Dixon,  William  W Deer  Lodge  City. 

Duke,  James  K.t Virginia  City. 

Edgertou,  Sidney* Virginia  City. 

Edwards,  Thomas  R Bozeman. 

Fleshmau,  Larkin* Virginia  City. 

George,  A.  G.  P Radersburg. 

•Deceased.  t  Removed  from  Territory. 


12  ATTORNEYS   AND   COUNSELORS   AT   LAW. 

Harrison,  M.  B.+ Deer  Lodge  City. 

Hedges,  Cornelius Helena. 

Hosmer,  Hezekiah  L.t Virginia  City. 

Hosmer,  J.  Allen Virginia  City. 

Johnston,.!.  A Helena. 

Kirkwood,  William  F Radersburg. 

Lyman,  L.  B Helena. 

Lovell,  William  Y.+ Virginia  City. 

Lowry,  Thomas  J Helena. 

Marshall,  William  I Virginia  City. 

May,  George* Helena. 

Mayhcw,  Alexander  E Missoula. 

McCarty,  O.  F.i Virginia  City. 

McCormick,  W.  J Missoula. 

McCullough,  J.  L.t Virginia  City. 

McMath,  William  L.* Virginia  City. 

McMurtry,  Louia Deer  Lodge  City. 

Mead,  Christian Bannack. 

More,  Elawson  C.t Helena. 

MuiHy,  Theophilus Virginia  City. 

Napton.  Thomas  L Deer  Lodge  City. 

Nealley,  Edward  B.t Virginia  City. 

Orr,  Sample Helena. 

Page,  Merritt  C Radersburg. 

Pai-rott,  R.  B.* Helena. 

Pemberton,  William  Y.t...... ., Helena. 

Phelps,  E.  F.* Bannack. 

Pinney,  George  M.* Helena. 

Potter,  John Hamilton. 

Potts,  Benjamin  F Virginia  City. 

Rey burn,  Lewis  C Virginia  City. 

Robertson,  R.  H.* Virginia  City. 

Robinson,  J.  C Deer  Lodge  City. 

Rogers,  John  H Deer  Lodge  City. 

Russell,  Thomas  V.-f Virginia  City. 

Sanders,  Wilbur  F Helena. 

Sharp,  L.  J Deer  Lodge  City. 

Sheffield,  Edward* Nevada. 

Shober,  John  H Helena. 

Slater,  John  S.* Virginia  City. 

Smith,  Green  Clay* Virginia  City. 

Smith,  H.  P.  A.* Helena. 

Snider,  Andrew  J\* Virginia  City. 

Spratt,  .Tames  G.* Virginia  City. 

Stafford,  William  M.* Virginia  City. 

Stapletou,  George  W A  rgenta. 

Stephens,  William  J Missoula. 

Stoddard,  E.  C.* Bagdad. 

Street,  J.  H.  D Bozeman. 

Strickland,  O.  F.+ Virginia  City. 

Symes,  George  G Helena. 

Thoroughman,  Thomaat Virginia  City. 


•  Deceased.  f  Kemoyed  from  Territory. 


ATTORNEYS  AND  COUNSELORS  AT  LAW.        18 

Toole,  Edwin  W Helena. 

Toole,  Joseph  K Helena. 

Tufts,  Jamest Virginia  City . 

Turk,  John  C.+ Virginia  City. 

Turner,  Charles  W Bozeman. 

Vivion,  Robert  P Bozeman. 

Warren,  Henry  L.f Virginia  City. 

Weston,  J.  R Radersburg. 

Williams,  Henry  F Bozeman. 

Williams,  J.  J Helena. 

Williams,  R.  H Bozeman. 

Woolf oik,  Alexander  M. Helena. 

Word,  Samuel Virginia  City. 

4  Rumored  from  Territory. 


PREFACE. 


THE  Territory  of  Montana  was  organized  by  the  act  of 
Congress,  approved  May  26,  1864.  The  ninth  section  of 
this  act  vests  the  judicial  power  in  a  supreme  court,  dis- 
trict courts,  probate  courts  and  justices  of  the  peace.  The 
supreme  court  consists  of  a  chief  justice  and  two  associate 
justices. 

The  first  term  of  the  supreme  court  of  Montana  was  held 
in  Virginia  City,  the  "seat  of  government"  of  the  Terri- 
tory, and  commenced  on  May  17,  1865.  During  the  terms 
that  were  held  from  May,  1865,  to  December,  1868,  the 
opinions  of  the  court  in  the  cases  that  were  determined 
were  rarely  delivered  in  writing.  Orders  were  generally 
made  that  the  judgment  of  the  court  below  should  be 
affirmed  or  reversed.  Written  opinions  were  filed  in  every 
case  that  was  decided  from  the  December  term,  1868,  to  the 
January  term,  1873.  The  records  of  the  court  before  the 
December  term,  1868,  are  imperfect,  and  the  pleadings, 
briefs  and  papers,  in  a  majority  of  the  causes  that  were 
heard  before  this  term,  cannot  be  found.  For  these  reasons 
this  volume  contains  a  report  of  the  cases  which  were 
argued  and  determined  in  the  supreme  court  of  the  Ter- 
ritory from  the  December  term,  1868,  to  the  January  term, 
1873. 

The  act  of  the  legislature,  that  provides  for  the  reporting 
of  the  decisions  of  the  supreme  court,  was  approved  Janu- 
ary 4,  1872.  The  second  section  provides  that  "the  report 
of  such  cases  shall  contain  coiicise  notes  of  the  points 


16  PUEFACE. 

decided,  a  statement  of  the  facts  taken  from  the  record, 
when  the  same  are  not  fully  given  in  the  opinion  of  the 
court,  the  names  of  the  counsel,  and  the  opinion  of  the 
court."  In  addition  to  the  duty  of  reporting  the  "names 
of  the  counsel,"  an  abstract  of  the  briefs  of  the  counsel  has 
been  prepared.  In  performing  this  labor  the  reporter 
regrets  that  he  has  been  compelled  to  do  an  injustice  to  the 
attorneys  by  publishing  a  digest  in  lieu  of  their  arguments. 


TABLE  OF  CASES  REPORTED. 


PAOK. 

Ames,  Murphy  VB 276 

A-nderson  vs.  O'Laughlin 81 

Appollonio,  Black  vs 342 

Armstrong,  McMullen  vs 486 

Atcliison  vs.  Peterson 561 

Aylesworth  vs.  Reece 200 

Barkley,  Parks  vs 514 

Basey,  Gallagher  vs 457 

Bautz  vs.  Kuh worth 133 

Black  vs.  Appollonio 342 

Blume,  Davis  vs 463 

Bohm  vs.  Dunphy 833 

Boley,  Griswold  vs 545 

Boucher  vs.  Mulverhill 806 

Brown  vs.  Gaston  &  8.  6.  &  8.  M. 

Co 57 

Buffalo  Robes,  U.  S.  vs 489 

Bullard  vs.  Gilette 509 

Caldwell  vs.  Gans 570 

Campbell  vs.  Metcalf 378 

Campbell,  Rankin  vs 300 

Carpenter  vs.  Rodgers 90 

Carothers  vs.  Connolly 433 

Carrhart  vs.  Montana  M.  L.  &  M. 

Co 245 

Caruthers  vs.  Pemberton Ill 

Christnot  vs.  Montana  Q.  &  S.  M. 

Co 44 

Coady  vs.  Reins 424 

Collier  vs.  Field 612 

Columbia  M.  Co.  vs.  Holter. .  296,  429 
Comanche  M.  Co.  vs.  Rumler  ....  201 

Conner  vs.  McPhe* 73 

Connolly,  Carothers  vs 433 


KA0B, 

Cope  VB.  UpperM.M.&P.  Co 58 

Cornell  vs.  Latta 714 

Creighton  vs.  Hershfield .  639 

Creighton  vs.  Vanderlip 400 

Cutter,  McFarland  VB 383 

Dahler  vs.  Steele 206 

Daily  vs.  Redfern 467 

Davis  vs.  Blume 463 

Davis  vs.  Germaine 210 

Davis  vs.  Hendrie 499 

Davis,  Wilson  vs 98,  183 

Donnell  vs.  Humphreys 518 

Drennan,  Territory  VB 41 

Dunphy,  Bohm  vs 333 

Dunphy,  Kleinschmidt  vs 118 

Edwards,  King  vs 235 

Ervin,  Rader  vs 632 

Farwell,  Sanders  VB 599 

Febes  vs .  Tiernan 179 

Field,  Collier  vs 612 

First  N.  B.  vs.  How 604 

Fisk  vs.  Rodgers 252 

Freed,  Thorp  vs 651 

Gallagher  vs .  Basey 45? 

Gans,  Caldwell  vs 570 

Garringer,  Woolman  VB 535 

Gaston  &  8.    G.    &  3.  M.   Co., 

Brown  vs 57 

Gaston  &  8.    O.    &  8.   M.   Co., 

Lamb  VB 64 

Gerber  vs.  Stuart 172 

Uermain*,  Davis  rm. 310 


TABLE  OF  OASES   REPORTED. 


FAGB. 

Oermaine,  Higgins  vs. 230 

Germaine,  Mason  vs 268,  279 

Gilbert,  Territory  ex  rel.  Largey  vs.  371 

Gilette,  Bullard  vs 509 

Godbe  vs.  McCormick 105 

Grant  vs.  Spencer 136 

Griffith  vs.  Hershfield 66 

Griswold  vs.  Boley    545 

Hampton,  Hutchinson  vs 39 

Harding,  Orr  vs 387 

Harris  vs.  Shontz 212 

Harvey  vs.  Whitlatch 718 

Hendrie,  Davis  vs 499 

Herbert  vs .  King 475 

Hershfield,  Creighton  vs 639 

Hershfield,  Griffith  vs 66 

Hershfield,  Pinney  vs 367 

Higgins  vs.  Germaine 230 

Holter,  Columbia  M.  Co.  vs. .  296,  429 

Holter,  Taylor  vs 688 

Horn,  Kinna  vs 329,  597 

Hornbuckle,  Toombs  vs 286 

How,  First  N.  B.  vs 604 

Hudson,  Lee  vs 84 

Humphreys,  Donnell  vs 518 

Hutchinson,  Hampton  vs 89 

Isaacs  vs .  Me  Andrew 437 

Kamak,  Loeb  vs 152 

Kelly,  Simonton  vs 868,  483 

Kemp  vs.  McCormick 420 

King  vs .  Edwards 235 

King,  Herbert  vs 475 

King,  Langford  vs 33 

King  vs.  Sullivan 282 

Kinna  vs.  Horn 329,  597 

Kintzing,  Lomnie  vs 290 

Kleinschmidt  vs.  Dunphy 118 

Kleinschmidt  vs.  Morse 100 

Kuh worth,  Bautz  vs 133 

Lamb  vs.  Gaston  &  S.  G.  &  S.  M.  Co.,     64 

Langford  vs .  King 33 

Largey,  McCormick  vs 158 

Latta,  Cornell  vs 714 

Lee  vs .  Hudson 84 

Lincoln  vs .  Rodgers 217 


VAOB. 

Loeb  vs.  Kamak  ................  152 

Lo«b  vs.  Schmith  ...............     87 

Lomme  vs.  Kintzing  ............  290 

Lomme  vs  .  Sweeney  ............  684 

Lovelock,  Nolan  vs  .............  224 

Marden  vs.  Wheelock  ..........     49 

Mason  vs.  Gennaiue  .......  263,  279 

McAndrew,  Isaacs  vs  ............  437 

McClin,  Territory  vs  ............  394 

McCormick,  Godbe  vs  ............   105 

McCormick,  Kemp  vs  ...........   420 

McCormick  vs.  Largey  .....  .....   158 

McCormick,  Travis  vs  .......  148,  347 

McDonald  vs.  Stokey  ...........  388 

McElroy,  Territory  vs  ...........     80 

McFarland  vs.  Cutter  ...........   38." 

McGregor  vs.  Wells  ............   142 

McMullen  vs.  Armstrong  ........  48M 

McPhee,  Conner  vs  ..............   J  7:i 

Metcalf,  Campbell  vs  ............   37S 

Miller,  Stewart  vs  ...............   301 

Ming  vs  .  Truett  ................  322 

Mochon  vs.  Sullivan  ............   470 

Montana  G.  &  S.  M.  Co.,  Christ- 

not  vs  .......................     44 

Montana  M.  L.  &  M.  Co.,  Carr- 

hart  vs  .......................  245 

Morgan  vs.  Reynolds  ............  163 

Morse,  Kleinschmidt  vs  .........  100 

Mulverhill,  Boucher  vs  ..........  806 

Murphy  vs  .  Ames  ..............  276 

Nelson  vs  .  O'Neal  ..............  284 

Nolan  vs.  Lovelock  ............  224 

Noteware  vs  .  Sterns  ............  311 

Nowlan,  Story  vs  ...............  850 

O'Laughlin,  Anderson  vs  ........     81 

O'Neal,  Nelson  vs  ...............  284 

Orr  vs  .  Harding  ................  887 

Parks  vs  .  Barkley  ..............  514 

Pemberton,  Caruthers  vs  ........  Ill 

Peterson,  Atchison  vs  ...........  561 

Pinney  vs.  Hershfield  ...........  367 


Rader  vs.  Ervin 
Rankin  vs.  Campbell 


TABLE  OF  OASES  BEPOBTED. 


19 


PAOB. 

Redfern,  Dally  VB 467 

Reece,  Ayles  worth  VB 200 

Reins,  Coady  VB 424 

Reins,  Wormall  VB 627 

Reynolds,  Morgan  VB 168 

Riale  VB.  Roush 474 

Robertson  vs.  Smith 410 

Rodgers,  Carpenter  VB 90 

Rodgers,  Fisk  vs 252 

Rodgers,  Lincoln  vs 217 

Roush,  Riale  VB 474 

Rumley,  Comanche  M.  Co.  VB 201 

Sanders  vs.  Farwell 599 

Schmith,  Loeb  vs 87 

Shontz,  Harris  VB 2J2 

Simonton  vs.  Kelly 363,  483 

Smith,  Robertson  VB 410 

Smith,  Thomas  vs 21 

Spencer,  Grant  vs 136 

Steele,  Dahler  vs 206 

Sterns  vs .  Noteware 311 

Stewart  vs.  Miller 301 

Stewart,  Taylor  vs 816 

Stokey,  McDonald  va  888 

Story  vs .  Nowlan 350 

Stuart.  Gerber  vs 172 

Sulnvan,  King  vs 282 

Sullivan,  Mochon  VB    470 

Sweeaey,  Lomme  VB 584 


PA0B. 

Taylor  vs.  Holier 888 

Taylor  vs.  Stewart 816 

Territory  vs.  Drennan 41 

Territory  ex  rel.  Largey  YB.  Gil- 
bert   871 

Territory  vs.  McClin 894 

Territory  vs.  McElroy 86 

Territory  vs.  Whitcomb 359 

Thomas  vs .  Smith 21 

Thorp  vs.  Freed 661 

Thorp  vs.  Woolman 168 

Tiernan,  Febes  VB 179 

Toombs  va.  Hornbuckle 286 

Travis  vs.  McCormick 148,  347 

Truett,  Ming  vs 322 

United  States  vs.  Buffalo  Robes. .  489 
Upper  M.  M.  &  P.  Co.,  Cope  vs.     53 

Vanderlip,  Creighton  vs 400 

Wells,  McGregor  vs 142 

Wheelock,  Marden  vs 49 

Whitcomb,  Territory  vs 359 

Whitlatch,  Harvey  vs 718 

Wilson  vs.  Davis 98,  183 

Woolman  vs.  Garringer. 536 

Woolman,  Thorp  vs 168 

Wormall  VB.  Reins  . .  .637 


CASES 

ARGUED   AND    DETERMINED 

ni  THE 

SUPREME  COURT 

AT  THS 

DECEMBER  TERM,   1868,   HELD    IN   VIRGINIA  CITY 


.Present: 

HON.  HENRY  L.  WARREN,  CHIEF  JUSTIC*. 
HON.  HIRAM  KNOWLES,  ASSOCIATE  JUSTICE. 


THOMAS,  appellant,   •«.    SMITH,   Treasurer  of  Deer   Lodge 
County,   respondent. 

PRACTICE —  mandamus  —  appeal  from  iu'der  <>n  referee,' x  report.  No  appeal  lies 
from  an  order  of  the  district  court  setting  aside  the  report  of  a  referee  upon 
an  application  for  a  writ  of  mandate. 

PRACTICE  —  mandiuiiu* —  reference —  must  be.  ilttKriniited  by  court.  The  district 
court  cannot  refer  an  application  for  a  writ  of  mandate,  but  must  grant  <>r 
deny  the  same  before  an  appeal  can  be  taken. 

VALIDITY  of  xtntiitr  relatiny  to  county  botuls.  The  act  approved  November  2^', 
18(57,  au(hori//mg  county  commissioners  to  call  in  all  outstanding  orders 
against  tin'1  treasury  of  their  respective  counties,  and  issue  bonds  in  lieu 
thereof  is  valid. 

POWER  <>f  commissioners  in  -issuiny  count n  bonds.  The  county  commissioueri 
of  a  county  cannot  require  the  holders  of  the  evidences  of  its  indebtedness 
to  surrender  the  same.  Th"  an  approverl  N'ovembor  !i2.  1^(!~,  confers  upon 
county  commissioners  the  |io>ver  fo  i>sue  homls  in  t  he  place  of  outstanding 
orders  which  have  been  voluntarily  pre-irnt-'il  l'"r!  hai  purposo. 


22  THOMAS  «.  SMITH.  [Dec.  T., 

STATUTE  relating  to  payment  of  county  warrants  not  repealed.  The  act  approved 
November  19, 1867,  entitled  "An  act  defining  the  duties  of  county  treas- 
urers, and  the  payment  of  county  warrants,"  is  not  repealed  by  the  act 
relating  to  county  bonds,  approved  November  22,  1867. 

Dmr  of  county  treasurer  —  power  of  county  commissioners.  The  treasurer 
must  pay,  upon  county  warrants,  money  in  the  treasury  of  the  county  which 
is  not  otherwise  appropriated  by  law.  An  order  forbidding  the  treasurer 
to  pay  such  warrants,  passed  by  the  county  commissioners,  is  void. 

Appeal  from  the  District  Court  of  the  Second  District, 
Deer  Lodge  County. 

THOMAS  applied  to  the  district  court  of  the  second  district 
for  a  peremptory  writ  of  mandate  on  April  18, 1868,  to  com- 
pel Smith,  the  treasurer  of  Deer  Lodge  county,  to  pay  a 
certain  warrant.  After  the  answer  and  replication  had  been 
tiled  the  following  order  was  made  by  the  court : 

«  APRIL  TERM,  1868  ;  May  12,  1868. 
"W.    W.  Dixon,  Esq.,   an   attorney  at  law,  is   hereby 
appointed  referee  in  the  application  of  J.  M.  Thomas  for  a 
writ  of  mandamus  against  Addison  Smith,  treasurer  of  Deer 
Lodge  county,  to  report  both  the  facts  and  the  law  in  the 
case  ;  to  make  his  report  in  twenty  days. 
"MayW,  1868. 

"  L.  P.  WiLLiSTOisr.  Judge" 

The  referee  made  his  report  on  May  30,  1868,  in  favor  of 
Thomas. 

On  February  22,  1868.  the  board  of  county  commissioners 
of  Deer  Lodge  county'  passed  the  following  order,  which  is 
referred  to  in  the  opinion  of  the  court : 

"  It  is  hereby  further  ordered  by  the  board  of  county  com- 
missioners that  the  treasurer  shall  not  pay  any  moneys  out 
of  the  county  treasury,  for  the  purpose  of  paying  off  any 
unpaid  county  warrants  that  may  have  been  issued  prior  to 
the  first  day  of  February,  1868 ;  neither  shall  he  take  in 
payment  of  taxes  or  licenses  any  warrant  that  may  havn 
been  issued  previous  to  the  date  above  named. 

"  February  22,  1868. 

•'Gr.  J.  LUCAS, 
'• ''// n! rut ii  n  Board  County  Commissioners.^ 


J868.]  THOMAS  v.  SMITH.  2» 

At  the  June  term,  1868,  the  court,  WILLISTON,  J.,  set 
aside  the  report  of  the  referee,  and  Thomas  appealed. 
The  facts  are  fully  stated  in  the  opinion. 

WORD  &  SPRATT  arid  L.  MoMuRTRY,  for  appellant. 

Appellant  presented  his  warrant  to  the  treasurer  of  Deer 
Lodge  county  for  payment  on  May  9,  1866,  and  April  17. 
1868.  On  the  last  day  the  treasurer  had  moneys  in  his 
hands  sufficient  to  pay  appellant's  warrant  and  refused  to 
pay  it.  Appellant  presented  his  warrant  under  section  8, 
page  518,  act  1865,  and  registered  it  under  sections  2  and  3 
of  the  act  of  J867.  page  59,  approved  November  19,  1867. 

The  first  question  is,  the  proper  construction  of  the  act 
approved  November  22,  1867,  page  234,  providing  for  the 
bonding  of  county  warrants.  Appellant  contends  that  this 
act  only  authorizes  the  county  commissioners  to  call  in  the 
outstanding  indebtedness,  and  to  fund  or  bond  so  much 
of  said  indebtedness  as  may  be  presented  to  the  treasurer 
of  the  county  for  that  purpose  by  the  holders  thereof.  The 
holders  of  the  warrants  cannot  be  compelled  to  bond  or  fund 
them.  The  county  commissioners  cannot  prohibit  the 
treasurer  from  paying  any  warrants.  This  act  is  not  repug- 
nant to  the  acts  of  February  9.  1865,  and  November  ID. 
1867,  cited  above.  These  acts  relating  to  the  same  subject- 
matter  must  be  construed  together. 

Repeals  by  implication  are  not  favored  by  law.  Sedg. 
Stat,  and  Const.  Law,  127  et  seq. ;  5  Abb.  N.  Y.  Dig.  93. 
^  'I'M.  200.  2()'l  and  202. 

If  these  acts  can  subsist  together  the  courts  will  uphold 
the  prior  law.  Sedg.  Stat.  and  Const.  Law,  127  et  seq.. 
247;  Merrill  v.  GorJiam.  0  Cal.  41. 

The  intention  of  the  legislature  is  to  be  searched  for  in  the 
words  of  the  statute.  Sedg.  Stat.  and  Const.  Law,  243  et 
fq.  :  :»  Abb.  X.  V.  Dig.  79.  j!  31. 

riie  la\\  under  which  appellant:  presented  his  warrant 
formed  part  of  the  contract  between  him  and  the  county 
His  right  to  receive  payment  became  vested  when  he  com- 
};\'v-(\  wiHi  the  law.  The  legislature  cannot  by  any  subse- 


24  THOMAS  r.  SMITH.  [Dec.  T. 

quent  act  impair  its  obligation  by  requiring  other  conditions 
to  be  performed,  which  were  not  required  by  the  law  of  the 
contract  itself.  Robinson  v.  Magee,  9  Cal.  81. 

The  previous  acts  of  the  legislature,  providing  that  appel 
1  ant's  warrant  should  be  paid  in  the  order  of  its  presentation 
or  registry,  appropriated  the  county  funds  to  that  purpose. 
The   county  commissioners   cannot  change   this   order  of 
payment.     Laforge  v.  Magee,  6  Cal.  285. 

The  act  of  November  22,  1867,  authorizing  the  funding  of 
county  indebtedness,  is  unconstitutional  and  void.  It 
delegates  to  the  county  commissioners  legislative  powers. 
17  Mo.  530. 

The  order  of  the  county  commissioners,  forbidding  the 
treasurer  to  pay  warrants  issued  prior  to  February  1,  1868, 
is  void.  It  is  an  exercise  of  legislative  power.  It  repeals 
and  annuls  the  acts  of  the  legislature.  No  such  power  is 
conferred  upon  the  commissioners  by  any  statute. 

The  act  of  November  22,  1867,  and  the  orders  of  the  county 
commissioners  thereunder,  impair  the  obligation  of  the  con- 
tract between  the  county  and  the  holders  of  warrants. 
Robinson  v.  Magee,  9  Cal.  81 ;  Laforge  v.  Magee,  6  id. 
285,  650 ;  17  Mo.  530. 

What  is  termed  the  policy  of  the  government,  with  regard 
to  any  particular  legislation,  is  generally  a  very  uncertain 
thing.  Sedg.  Stat.  and  Const.  Law,  308  ;  Hodden  v.  The 
Collector,  5  Wall.  111. 

SHAEP  &  NAPTON  and  J.  C.  ROBINSON,  for  respondent. 

The  decision  of  the  court  below  in  setting  aside  the  report 
of  the  referee  is  correct.  It  is  clearly  settled  that  it  is  not 
necessary  to  the  repeal  of  a  law  that  it  should  be  done  in 
terms,  nor  that  one  law  should  be  directly  repugnant  to  tho 
other.  1  Kent's  Com.  462  ;  Plerpont  v.  Cranch,  10  Cal.  316  : 
Sacramento  v.  Bird.  15  id.  295  ;  Appeal  of  N.  B.  &  M.  It. 
R.  Co.,  32  id.  515. 

The  intention  of  the  legislature,  when  it  can  be  ascer- 
tained, must  govern  in  the  construction  of  statutes.  Thai 


18(58.  ]  THOMAS  v.  SMITH.  2o 

intention  must  be  gathered  from  the  act  itself.     Sedg.  Stat. 
and  Const.  Law,  229-234,  293-298;   Schofield  v.  While,  7 
Oal.  400;    Smith  Stat.   and  Const.  Law,  649;    Knowles  v. 
Ye.ates,  31  Cal.  86. 

Where  there  are  two  statutes  of  different  dates  upon  the 
same  subject,  and  full  force  and  effect  cannot  be  given  to 
both,  the  latter  operates  as  a  repeal  of,  and  destroys  the 
force  and  effect  of  the  former.  Whenever  a  power  is  given 
by  statute,  every  thing  necessary  to  attain  the  end  is  implied. 
1  Kent's  Com.  524. 

The  act  of  November  22,  1867,  gives  the  commissioners 
the  authority  to  call  in  all  indebtedness.  Webster  defines 
authority  to  be  legal  power,  or  a  right  to  command  or  to  act. 
as  the  authority  of  a  prince  over  subjects,  etc.  The  inten- 
tion of  the  legislature  in  making  the  law  of  November  22, 
1867.  was  to  prescribe  the  only  mode  of  payment.  It  not 
only  gives  the  authority  referred  to,  but  further  provides 
that  all  bonds  shall  draw  interest  and  be  paid  in  seven  years. 
The  creditors  are  compensated  for  the  delay  in  enforcing 
their  remedy.  It  cannot  be  that  it  was  only  intended  to 
empower  the  commissioners  to  fund  or  not,  at  the  pleasure 
ol'  the  scrip  holder.  If  so,  they  would  have  been  allowed 
to  bond  on  the  best  terms  they  could.  They  must  pay 
fifteen  per  cent  per  annum  interest.  Appellant's  construc- 
tion would  simply  give  commissioners  the  power  to  com- 
promise the  county  indebtedness  and  borrow  money,  which 
they  can  do  under  the  acts  of  1865,  page  500,  section  14. 
Section  8  of  the  acts  of  1865,  page  518,  is  in  conflict  with 
sections  3  and  6  of  acts  of  1867,  page  234. 

There  was  no  necessity  for  a  repealing  clause  as  the  bond 
ing  act  was  ineffectual  until  acted  upon  by  the  county  com- 
missioners. The  commissioners  have  ordered  the  bonding 
of  the  county  wan-ants  under  the  law.  and  declared  that 
they  will  only  pay  by  bonding,  which  renders  the  law 
effectual.  The  subject  of  this  action  is  included  in  the  war- 
rants thus  ordered  bonded. 

To  sustain  both  acts,  as  contended  for  by  appellant,  would 
virtually  render  the   last   of  no  effect  wluttevei'.      A  statute 
Vor..  T---4. 


26  THOMAS  v.  SMITH.  [Dec.  T., 

should  never  be  so  construed  as  to  render  it  a  nullity 
Smith  Stat.  and  Const.  Law,  §§  671,  672. 

Remedial  statutes  should  be  largely  and  liberally  con- 
strued. Smith  Stat.  and  Const.  Law,  §§  547,  709,  710. 

The  legislature  has  the  right  to  alter  the  remedy,  if  it  does 
not  thereby  impair  the  right  and  make  the  remedy  hardly 
Avorth  pursuing.  Smith  v.  Morse,  2  Cal.  549.  The  legisla- 
ture  may  fund  the  debt  of  a  county.  HunsacTcer  v.  Borden. 
6  Cal.  288  ;  Chapman  v.  Morris,  28  id.  394. 

The  record  shows  that  appellant's  right  never  became 
vested. 

The  legislature  did  not  delegate  legislative  power  to  the 
county  commissioners  in  leaving  it  discretionary  with  them 
to  fund  the  county  indebtedness.  Blanding  v.  Burr,  13 
Cal.  358 ;  Chapman  v.  Morris,  28  id.  394. 

County  commissioners  understand  the  wants  of  their 
county  better  than  the  legislature.  The  action  of  the  com- 
missioners was  not  legislative  in  its  character,  but  simply 
ministerial.  They  complied  strictly  with  the  funding  act. 
Upham  v.  Supervisors  Suiter  County.  8  Cal.  378  ;  Emery 
v.  San  Francisco  Gas  Co.,  28  id.  348. 

Any  one  interested  could  have  compelled  the  commis- 
sioners to  fund  if  they  had  refused.  City  of  New  York\. 
Furze,  3  Hill,  612. 

WARREN,  C.  J.  This  was  an  application  on  the  affidavit 
of  appellant  to  obtain  a  writ  of  peremptory  mandamus  out 
of  the  district  court  of  the  second  judicial  district,  in  and 
for  the  county  of  Deer  Lodge,  directed  to  the  respondent, 
treasurer  of  said  county,  to  compel  the  payment  out  of  the 
county  treasury  to  appellant  of  county  warrant  numbered 
364.  drawn  by  the  county  commissioners  of  that  county  on 
the  treasurer  for  the  sum  of  8213.20.  payable  to  C.  E.  Irvine 
or  order,  out  of  any  moneys  in  the  treasury  of  said  county, 
and  dated  May  9.  1866. 

The  affidavit  alleges  legal  ownership  of  the  warrant  by 
appellant,  its  presentation  on  the  9th  day  of  May,  1866, 
to  the  then  treasurer  for  payment,  and  non-payment  for 


1868.J  THOMAS  v.  SMITH.  27 

want  of  funds,  and  avers  that  afterward  money  was  received 
by  the  respondent  as  such  treasurer,  which  was  appro- 
priated by  law  to  the  payment  of  said  warrant ;  and  that 
appellant,  on  April  17,  1868,  presented  same  to  respondent, 
who  had  previously  as  such  treasurer  received  money 
appropriated  by  law  to  pay  said  warrant,  for  payment,  and 
who  then  refused  to  pay  same. 

>?ome  matters  of  practice  hereafter  noticed  make  it  neces- 
sary to  detail  the  history  of  the  case. 

In  his  amended  answer  respondent  specially  denies  : 

1.  That  he  had  at  the  time  of  answering,  or  had  had  since 
the  commencement  of  the  action,  any  money  in  his  hands  or 
custody  appropriated  by  law  to  payment  of  the  warrant ;  and, 

2.  That  he  had  at  any  time  received  any  money  appro- 
priated by  law  to  payment  of  same. 

For  further  answer  he  sets  up  the  act  of  the  legislative 
assembly,  entitled  "An  act  to  authorize  the  county  commis- 
sioners of  the  several  counties  of  the  Territory  of  Montana 
TO  fund  Tin-  debt  of  their  respective  counties."  approved 
November  22,  1867,  and  two  orders  made  under  color  of  that 
act  by  the  board  of  county  commissioners  of  Deer  Lodge 
county,  which  are  set  out  in  the  answer,  the  first  bearing 
.late  February  1,  1868,  and  the  other  February  22.  1868. 
The  first  order  recites  that  the  commissioners,  deeming  it  for 
the  interest  of  Deer  Lodge  county  that  all  the  outstanding 
orders  against  the  treasurer  of  said  county  be  called  in,  do 
order  that  all  outstanding  orders  against  the  treasurer  of 
said  county  be  called  in,  and  that  bonds,  with  coupons  pajr- 
able  semi-annual ly,  be  issued  in  lieu  thereof,  by  virtue  of, 
and  in  conformity  with,  the  act  of  the  legislative  assembly 
of  November  22,  1867  ;  and  further,  that  $3.000  be  set  apart 
from  the  ordinary  revenue  of  the  county  for  the  year  1868. 
for  the  payment  of  the  outstanding  bonds  against  the  treas- 
ury of  said  county  and  the  interest  thereon.  The  second 
order  forbade  the  county  treasurer  to  pay  any  money  out 
of  the  treasury  for  the  purpose  of  paying  off  any  unpaid 
county  warrants  issued  prior  to  February  1,  1868.  or  tr 
such  warrants  in  payment  of  taxes  or  licenses. 


•38  THOMAS  v.  SMITH.  [Dec.  T., 

The  answer  avers  that  both  these  orders  of  the  board  were 
made  prior  to  the  presentation  of  the  warrant  in  question  to 
respondent  for  payment. 

To  this  answer  respondent  tiled  a  replication,  and  the 
cause  was  referred,  by  order  of  the  court,  to  a  referee  ' '  to 
report  both  the  facts  and  the  law  of  the  case,''  who  after- 
ward tiled  a  report  including  finding  of  facts  and  conclu 
sions  of  law,  and  recommending  that  an  order  of  court  be 
made  for  a  peremptory  mandamus  to  respondent  in  accord- 
ance with  the  application.  To  this  report  of  the  referee 
respondent  excepted,  assigning  errors,  and  moved  to  set  the 
report  aside,  and  for  a  new  trial. 

Upon  this  motion  the  court  rendered  what  purports  to  be 
a  judgment,  reviewing  the  conclusions  of  law  reported,  and 
concluding  as  follows  :  "  We  feel  impelled  in  the  brief  time 
we  have  to  investigate  the  question  to  dissent  from  the  report 
of  the  referee.  We,  therefore,  sustain  the  exceptions  (except 
the  one  rejecting  evidence),  and  set  aside  the  report  of  the 
referee." 

To  this  order,  or  decision,  appellant  noted  his  exception. 

This  is  all  the  transcript  shows,  except  the  following 
stipulation  of  the  parties  under  which  the  proceeding  is 
brought  before  this  court : 

"It  is  stipulated  and  agreed  by  and  between  the  parties 
hereto  as  follows : 

"1.  That  the  cause  be  taken  by  appeal  to  the  supreme 
court  of  the  Territory,  upon  the  decision  and  order  of  the 
judge  of  said  district  court  setting  aside  the  report  of  the 
referee  in  this  cause,  and  the  order  of  said  judge  granting  a 
new  trial  thereon. 

•'2.  That  all  errors  and  defects  in  the  pleadings  in  said 
cause  be  and  the  same  are  hereby  waived,  and  the  court  is 
hereby  authorized  and  requested  to  order  said  appeal  in 
accordance  with  these  stipulations." 

We  have  thus  detailed  the  proceedings  in  the  cause, 
because,  as  an  appellate  court,  we  are  met  at  the  outset  by 
a  difficulty  as  to  what  questions  are  presented  in  this  tran- 
script for  the  adjudication  of  this  court. 


1868.J  THOMAS  v.  SMITH.  29 

No  appeal  lies  from  the  mere  order  or  decision  setting 
aside  the  report  of  the  referee  ;  and,  though  recited  in  the 
stipulation,  the  transcript  fails  to  show  any  further  order 
granting  or  denying  the  application,  granting  or  refusing  a 
new  trial,  or  any  final  judgment  or  order  whatever  from 
which  an  appeal  would  lie.  This  difficulty  arises  from  the 
error  of  the  court  in  ordering  a  reference  of  the  cause,  and 
subsequently  in  failing  to  either  grant  or  deny  the  applica- 
tion. We  will  not  stop,  however,  to  discuss  the  validity  of 
a  reference  of  "issues"  or  "questions"  of  law,  under  our 
code  of  practice,  without  consent  of  the  parties  entered  upon 
the  record.  In  a  proceeding  for  a  mandamus  our  statute 
contemplates  that  questions  of  fact  and  of  law  shall  respec- 
tively be  determined  in  the  manner  pointed  out  —  questions 
of  law  being  for  the  court.  In  this  case  the  issues  raised  on 
the  affidavit  and  answer  are  questions  of  law  —  the  only 
issue  of  fact  joined  being  the  denial  by  respondent  that  he 
had,  prior  to  the  commencement  of  the  action,  received  money 
as  treasurer  appropriated  by  law  to  payment  of  the  warrant, 
and  this  really  involving  a  question  of  law.  Although  the 
court  below  did  not  take  such  final  action  as  would  bring 
these  questions  before  this  court  on  appeal,  yet,  regarding 
them  as  of  interest,  and  in  view  of  the  intention  of  the  parties, 
as  indicated  by  their  stipulation,  we  will  proceed  to  con- 
sider them  as  presented  by  the  pleadings,  treating  the  report 
of  the  referee  upon  the  issue  of  fact  as  a  special  finding 
of  the  court,  and  regarding  the  order  setting  it  aside  as  an 
order  denying  the  application  of  appellant  on  the  facts  as 
shown  by  the  record. 

The  respondent  bases  his  refusal  to  pay  the  warrant,  in 
substance,  upon  the  orders  of  the  board  of  county  commis- 
sioners set  out  in  the  answer,  and  that  the  money  in  the 
treasury  was  not  by  law  appropriated  to  such  payment. 

ft'  those  orders  of  the  board  were  made  by  competent 
authority,  within  the  limitations  of  legislative  power,  they 
would,  of  course,  furnish  a  legal  justification  of  his  refusal. 
To  determine  whether  such  is  the  case,  we  must  first  refer 
to  the  acts  of  the  legislative  assembly  conferring  powers 


50  THOMAS  v.  SMITH.  [Dec.  T.r 

upon  the  commissioners,  as  it  is  not  contended  that  they 
possess  any  legal  powers,  except  such  as  may  be  rightfully 
conferred  upon  them  by  the  legislature,  in  the  exercise  of 
its  powers  under  the  constitution  and  acts  of  congress. 

The  act  of  November  22,  1867,  is  relied  upon  as  confer- 
ring this  power  upon  the  board.  The  constitutionality  of 
this  statute  is  questioned  by  appellant,  but,  properly  inter- 
preted, we  regard  it  as  upon  a  rightful  subject  of  legislation, 
and  within  the  scope  of  legislative  powers. 

It  is  claimed,  however,  by  respondent  that,  under  this 
statute,  the  county  commissioners  possessed  the  power  to 
require,  by  an  order,  that  all  holders  of  warrants,  issued  prior 
to  the  date  of  their  first  order,  should  surrender  them  for 
cancellation,  and  receive  bonds  in  lieu  thereof  ;  and  that  this 
act,  upon  the  making  of  such  order,  in  effect  repealed  all 
prior  laws  providing  for  payment  of  outstanding  warrants 
out  of  the  treasury,  leaving  such  warrants  as  were  not  sur- 
rendered unprovided  for.  We  do  not  so  regard  it.  While 
we  admit  the  power  of  the  legislative  assembly,  either  by 
direct  laws  or  through  the  commissioners,  to  control  the 
financial  affairs  of  a  county,  subject  only  to  well  estab- 
lished limitations,  we  would  be  forced  to  deny  the  power 
claimed  to  require  the  surrender  of  evidences  of  county 
indebtedness  by  the  holders  on  any  terms  or  conditions, 
whether  favorable  or  unfavorable  to  the  latter.  The  county 
revenues  might  be  appropriated  by  law  to  other  purposes 
than  payment  of  the  outstanding  indebtedness,  leaving  that 
unprovided  for,  and  whatever  violation  of  moral  obligation 
or  of  public  faith  this  might  be,  the  creditor,  unless  in  some 
case  of  vested  right,  would  be  without  legal  remedy.  This 
subject  we  have  discussed  in  another  case  and  wili  not 
pursue  farther. 

We  do  not  think  the  act  in  question  intended  a  compul- 
sory change  of  the  form  of  the  county  indebtedness.  In 
construing  a  statute  it  is  the  duty  of  a  court,  where  one  of 
two  constructions  will  render  it  inoperative,  or  even  simply 
harsh,  and  another  valid,  to  give  it  such  construction  aa 
will  sustain  it. 


1868.]  THOMAS  v.  SMITH.  31 

We  hold,  then,  that  the  statute  of  November  22,  1867, 
simply  conferred  upon  the  commissioners  the  power,  which, 
without  it,  they  did  not  possess,  to  issue  bonds  bear 
ing  liberal  interest,  and  substitute  them  for  outstanding 
orders,  and  thus  sustain  the  financial  credit  of  the  county. 
The  exchange  was  not  to  be  compulsory,  but  dependent  on 
the  will  of  the  holders  of  warrants.  In  this  light  it  is  a  wise 
and  just  measure  ;  and  we  fail  to  see,  as  is  claimed  by 
respondent,  how  such  construction  renders  the  statute 
nugatory. 

The  question  then  recurs  as  to  what  were  the  rights  of 
appellant,  if  declining  to  surrender  his  warrant  under  the 
order  of  the  board.  Unquestionably  to  have  it  paid,  accord- 
ing to  its  terms,  out  of  money  in  the  county  treasury  not 
otherwise  appropriated  by  law.  The  answer  of  respondent 
avers  that,  at  the  time  of  the  presentation  of  the  warrant  to 
him,  he  had  not  in  his  hands  money  appropriated  by  law 
to  its  payment.  The  finding  of  the  referee  on  this  issue  was, 
that  "  on  the  17th  day  of  April,  1868,  when  demand  of  pay- 
ment of  plaintiff's  warrant  was  made,  by  reason  of  further 
receipts  and  the  funding  of  prior  warrants,  he  had  received 
more  than  sufficient  money  to  pay  plaintiff's  warrant,  sup- 
posing that  it  was  entitled  to  be  paid  in  its  regular  order, 
without  regard  to  the  funding  law  and  the  order  of  the  com- 
missioners." 

The  money,  then,  was  in  the  treasury.     Was  it  appro 
priated  by  law  to  the  payment  of  the  warrant? 

By  an  act  of  the  legislative  assembly,  entitled  ';  An  act 
defining  the  duties  of  county  treasurers,  and  the  payment 
of  county  warrants,"  approved  November  19,  1867,  it  is  pro- 
vided that  county  warrants  "  shall  be  paid  in  the  order  in 
which  they  are  presented"  to  the  county  treasurer  for  pay- 
ment. It  is  urged  by  respondent  that  this  law  was  repealed 
by  implication  by  the  act  of  November  22.  It  is  a  primary 
principle  that  statutes  in  par  I  materiel  shall  be  so  construed 
as  that,  if  possible,  all  shall  stand.  The  interpretation  we 
have  given  the  latter  act  removes  all  conflict  between  it 
and  the  former  one,  and  gives  effect  to  both. 


32  THOMAS  v.  SMITH.  [Dec.  T., 

The  act  of  November  22d  permitted  the  commissioners  to 
appropriate  but  one-fifth  of  the  county  revenue  annually  to 
payment  of  bonds,  leaving  the  remainder  to  be  applied  in 
accordance  with  previous  laws.  The  order  of  the  commis- 
sioners, of  February  1st,  set  apart  $3,000  of  the  ordinary 
revenue  of  the  county  for  1868  for  the  payment  of  outstand- 
ing  bonds,  and  it  is  to  be  presumed  that  amount  constituted 
the  one-fifth  of  the  revenue  of  the  county  for  that  year  per- 
mitted by  law  to  be  appropriated  for  that  purpose  ;  if  it  was 
more  it  was  unauthorized  by  the  law.  The  remainder  of 
the  revenue,  then,  was  subject  to  the  disposition  made  by 
prior  laws.  The  act  relating  to  counties  and  county  officers, 
approved  February  9,  1865,  in  specifying  the  duty  of  the 
county  treasurer,  provides  that  "all  moneys  received  by 
him  for  the  use  of  the  county  shall  be  paid  out  by  him  only 
on  the  orders  of  the  board  of  commissioners,  according  to 
law,  except  when  specified  provision  for  the  payment  thereof 
is  or  shall  be  otherwise  made  by  law."  Under  this  act,  and 
that  of  November  19,  1867,  it  appearing  that  appellant's 
warrant  was  entitled  to  payment  in  the  order  of  presentation, 
and  that  the  money  in  the  treasury,  at  the  time  of  its  pre- 
sentation to  respondent  for  payment,  was  not  set  apart 
under  the  order  of  February  1st  of  the  board  of  commis- 
sioners as  part  of  the  $3,000,  or  otherwise  appropriated  by 
law,  it  was  the  duty  of  respondent,  notwithstanding  the  last 
order  of  the  commissioners,  to  apply  it  to  payment  of  the 
warrant. 

The  judgment  of  the  court  below  is  reversed  with  costs, 
and  it  is  ordered  that  a  peremptory  writ  of  mandate  issue 
out  of  this  court,  directed  to  the  treasurer  of  Deer  Lodge 
county,  commanding  him  to  pay  to  appellant,  holder  of  the 
county  warrant  hereinbefore  described,  the  amount  of  said 
warrant,  with  interest  on  the  same  at  the  rate  of  ten  per 
cent  per  annum  from  April  17,  1868,  out  of  any  money  in 
the  treasury  not  otherwise  appropriated  by  law. 

KNOWLES,  J.,  concurred. 


1868.]  LANGFORD  v.  KING.  33 

Exceptions  sustained,  Peremptory  writ  of  mandate 
granted. 

The  respondent  filed  a  motion  for  a  rehearing,  which  was 
denied  at  the  same  term  for  the  reasons  contained  in  the 
forgoing  opinion. 


LANGFORD,  respondent,  v.  KING,  Treasurer  of  Lewis  and 
Clarke  County,  appellant. 

TERRITORIAL  WARRANT — how  paid.  A  territorial  warrant,  duly  issued,  pre- 
sented for  payment  and  "  not  paid  for  want  of  funds,"  in  July,  1867,  and 
subsequently  sold  by  the  owner,  could  not  be  paid  by  the  Territory  in  money 
or  taxes,  at  its  option,  in  July,  1868. 

TERRITORIAL  WARRANTS—  no  contract  for  their  payment.  The  statute  in  force 
in  July,  1867,  giving  the  holders  of  territorial  warrant*  the  right  to  pay 
taxes  with  them,  was  not  a  contract  that  they  should  be  so  paid. 

VALIDITY  of  act  relating  to  payment  of  tuxes  in  money.  The  act  approved 
November  19,  1867,  which  deprives  the  holders  of  territorial  warrants,  not 
issued  in  their  names,  of  the  right  of  paying  taxes  with  them,  is  constitu- 
tional. 

WHEN  holder  of  territorial  warrant  has  a  vested  right.  The  holder  of  a  territorial 
warrant,  who  presented  it  in  payment  of  taxes  before  the  passage  of  the 
act  approved  November  19,  1867,  acquired  a  vested  right  to  pay  taxes 
with  it. 

TERRITORIAL  contracts  have  no  legal  obligation.  A  citizen  cannot  sue  the 
Territory  and  enforce  its  contracts.  They  have  no  legal  obligation,  but 
rest  upon  the  good  faith  of  the  Territory. 

Appeal  from  tlie  District  Court  of  the  Third  District, 
Lewis  and  Clarke  County. 

LANGFORD  applied  to  the  district  court  of  the  third  dis 
trict  on  August  5,  1868,  for  a  writ  of  mandate  to  require 
King,  as  county  treasurer  of  Lewis  and  Clarke  county,  to 
accept  a  territorial  warrant  in  payment  of  taxes  due  from 
Langford.  The  warrant  was  duly  drawn  and  issued  in  favor 
of  Green  C.  Smith,  and  presented  for  payment  on  July  17, 
18(57.  Smith  sold  the  warrant  for  a  valuable  consideration 
VOL.  1—5. 


34  LAKGFOKD  v.  KING.  [Dec.  T., 

to  Langford,  who  tendered  it,  in  part  payment  of  his  taxes, 
to  King  on  July  11,  1868.  King  refused  to  receive  the  war- 
rant, because  it  was  not  issued  in  the  name  of  Langford, 
according  to  the  act  approved  November  19, 1867,  "  defining 
the  duties  of  county  treasurers,  and  the  payment  of  county 
warrants."  Langford  then  applied  for  the  writ  of  mandate, 
which  was  issued  in  the  alternative  on  August  15,  1868,  by 
the  court,  MUNSON,  J.,  who  made  the  following  order  in 
chambers : 

' '  This  case  having  been  submitted  to  me  for  a  ruling,  under 
stipulation  that  the  same  be  taken  to  the  supreme  court  for 
final  decision,  without  giving  the  subject  that  full  considera- 
tion its  importance  demands,  and  for  the  purpose  of  raising 
the  question  for  the  consideration  of  the  supreme  court,  I 
do  hereby  make  a  ruling  in  favor  of  the  plaintiff  and  against 
the  defendant,  and,  therefore,  adjudge  that  the  defendant 
receive  said  warrant  for  said  taxes  due  from  the  plaintiff, 
as  in  said  complaint  specified." 

The  parties  stipulated  in  writing  that  no  peremptory  writ 
of  mandate  should  be  issued  until  the  final  decision  of  the 
supreme  court  had  been  rendered. 

The  statutes  relating  to  the  subject  of  the  action,  and 
further  facts,  appear  in  the  opinion. 

J.    H.   SHOBEE,  District  Attorney,   Third    District,  for 

appellant. 

The  purpose  and  manner  of  issuing  territorial  warrants, 
as  well  as  the  mode,  manner  and  order  of  payment  of  the 
same,  are  strictly  within  the  control  of  the  territorial  legis- 
lature. 

The  legislature  has  a  right  to  provide  means  for  defray- 
ing the  expenses  of  the  territorial  government.  It  must 
necessarily  provide  laws  for  levying  and  collecting  taxes. 
Hence  follows  the  authority  to  prescribe  in  what  the  taxes 
shall  be  paid,  money,  warrants  or  both. 

The  act  approved  November  19,  1867,  does  not  impair  the 
obligation  of  contracts.  The  contract  made  between  the 
Territory,  and  the  holder  of  the  warrant  tendered,  was  that 


; 808,1  LANGFORD  v.  KING.  36 

he  should  have  $10  paid  by  the  territorial  treasurer  out  of 
any  money  in  the  treasury,  not  otherwise  appropriated. 
This  contract  is  not  impaired  by  that  act.  He  is  required  to 
pay  his  taxes  in  money  when  they  become  due,  but  his 
right  tc  receive  the  money  on  his  warrant  is  not  affected. 
One  use  to  which  the  warrant  might  have  been  applied  has 
been  destroyed  by  the  act. 

The  appellant  properly  refused  to  receive  the  warrant 
tendered  by  respondent,  as  it  was  issued  to  Green  C.  Smith, 
and  assigned  by  him  to  respondent. 

LAWRENCE  &  HEDGES,  for  respondent. 

Const.  U.  S.,  art.  1,  §  10.  No  State  shall  pass  any  bill 
of  attainder,  ex  post  facto  law,  or  law  impairing  the  obli- 
gation of  contracts.  If  a  State  cannot  do  it,  much  less  can 
a  Territory.  This  law  applies  to  all  contracts  between  the 
State  and  individuals.  1  Kent's  Com.  462. 

All  effectual  remedies  affecting  the  interests  and  rights  of 
owners,  existing  when  the  contract  was  made,  become  an 
essential  ingredient  in  it,  and  are  parcel  of  the  creditor's 
rights,  and  ought  not  to  be  disturbed.  All  suspension  by 
statute  of  remedies,  or  any  part  thereof  existing  when  the 
contract  was  made,  is  more  or  less  impairing  its  obligation, 
tion.  1  Kent's  Com.  461-2. 

What  is  the  contract  contained  in  this  warrant  under  the 
law  existing  at  the  time  it  was  issued  ?  It  is  negotiable. 
The  indorsee  has  all  the  remedies  of  original  payee.  Section 
14,  page  57,  and  section  1,  page  59,  of  the  act  of  1867,  do 
not  apply  to  warrants  issued  prior  to  November  1,  1867, 
or  they  are  unconstitutional. 

Tlie  warrant  is  in  the  form  authorized  by  law,  and  is 
receivable  for  full  amount  of  taxes  payable  into  territorial 
treasury.  Acts  1865,  pp.  408  and  422,  §  35  ;  also,  p.  528,  §  1 6. 

County  treasurers  are  collectors  of  taxes  and  licenses  due 
the  Territory.  Act  1865,  p.  421.  §§  34,  35;  act  1867,  pp. 
45,  240. 

The  holders  of  such  warrants  are  deprived  of  all  remedy. 
Act  1867.  pp.  53.  57,  59. 


36  LANGFOBD  v.  KING.  [Dec.  T., 

KNOWLES,  J.  This  cause  comes  to  this  court  on  appeal 
from  a  judgment  awarding  the  respondent  a  peremptory 
writ  of  mandamus,  commanding  the  appellant  to  take  in 
payment  of  the  Territory's  proportion  of  a  license,  terri- 
torial warrant  No.  458,  for  $10,  issued  July  2,  1867,  to 
Green  C.  Smith. 

On  the  2d  day  of  July,  1867,  the  following  statutes  of 
this  Territory  were  in  full  force,  viz. :  Sections  2  and  5 
of  ' '  An  act  to  provide  for  the  expenses  of  Montana  Terri- 
tory." They  read  as  follows  : 

"§  2.  That  the  treasurer  shall  pay,  out  of  any  funds  in 
his  hands  applicable  to  such  use,  the  amount  stated  as  due 
in  the  auditor' s  warrants,  only  in  the  order  in  which  they 
are  drawn  according  to  priority  of  date ;  provided  that  all 
warrants  are  receivable  into  the  treasury  in  payment  of  any 
taxes,  licenses  or  other  dues  due  the  Territory. 

"§  5.  That  the  warrants  drawn  by  the  auditor  of  this 
Territory  on  the  treasurer  shall  be  received  by  the  sheriff  or 
collector  of  the  revenue  in  payment  of  taxes,  fines  and 
penalties,  or  other  dues  to  the  Territory,  at  par,  and  shall 
be  received  from  such  officer  by  the  treasurer  in  settle- 
ment of  revenue  due  from  such  sheriff  or  collector  of  the 
Territory." 

Also  section  35  of  "An  act  providing  for  the  collection 
of  the  revenue."  That  part  of  it  which  refers  to  territorial 
warrants  is  as  follows  : 

"Auditors'  warrants  are  receivable  for  the  full  amount 
of  taxes  payable  into  the  territorial  treasury." 

After  the  issuing  of  this  warrant  to  Smith,  and  before  the 
tendering  of  it  to  appellant  by  respondent  in  payment  of 
the  Territory' s  proportion  of  a  license,  the  following  statute 
was  enacted,  viz.  : 

"§  1.  That,  from  and  after  the  passage  of  this  act,  all 
taxes  and  licenses  due  this  Territory,  or  any  county  thereof, 
shall  be  paid  in  money  at  the  time  the  same  may  become 
due ;  provided  that  any  person  or  persons  who  may  have 
rendered  services  to  the  Territory,  or  any  county  thereof, 
and  who  hold  warrants  issued  therefor  in  his  or  their 


1868.]  LANGFORD  «.  KING.  37 

names,  shall  have  the  privilege  of  paying  his  or  their  taxes 
or  licenses  with  such  warrants,  in  proportion  of  sums  due 
the  proper  county  or  Territory." 

Section  7  of  this  act  provides  that  "all  acts  and  parts  of 
acts  conflicting  with  this  act  are  hereby  repealed  "  See 
Statutes  of  Fourth  Legislative  Assembly,  p.  59. 

The  first  question  presented  to  us  is :  Did  the  Territory 
contract  with  Smith  that  this  warrant  should  be  received  by 
it  in  payment  of  taxes  or  licenses  ?  If  we  consider  the  war- 
rant itself,  we  have  no  difficulty  in  saying  the  Territory 
never  made  any  such  contract.  The  form  of  the  warrant  is 
in  accordance  with  the  provisions  of  law.  See  Statutes  of 
First  Legislative  Assembly,  408.  It  is  as  follows : 

No.  458. 

TERRITORY  OF  MONTANA,  MADISON  COUNTY,  | 
VIRGINIA  CITY,  July  2,  1867.  ( 

The  treasurer  will  pay  to  Green  C.   Smith  or  order  ten 
dollars,  out  of  any  moneys  in  the  Treasury  not  otherwise 
appropriated.     Presented  for  payment. 
July  17,  1867.  JNO.  H.  MING, 

Territorial  Auditor. 
JNO.  S.  ROCKFELLOW, 

Territorial  Treasurer. 

It  is  contended,  however,  that  those  statutes  existing  July 
2,  1867.  enter  into  and  are  a  part  of  this  contract.  It  is  true 
that  laws  do  enter  into  and  form  a  part  of  contracts  made 
during  their  existence,  when  parties  ha^e  left  any  thing  to 
be  supplied  by  law. 

But  when  parties  have  made  and  entered  into  contracts 
which  are  not  illegal,  the  law  never  enters  into  them  to  vary 
or  add  to  them,  so  as  to  make  the  contract  different  from 
what  the  parties  have  made  it  themselves.  See  2  Pars,  on 
Cont.  '21.  Laws  give  effect  to  the  contracts  parties  them- 
selves have  made.  If  those  laws  added  to  this  contract  so 
as  to  bind  the  Territory  to  receive  this  warrant  in  payment 
of  taxes,  then  it  also  added  to  the  obligations  of  the  receiver 
of  the  warrant,  and  bound  him  to  pay  it  over  to  the  Terri- 
tory, on  demand,  for  taxes  due  the  Territory,  for  the  obliga 


38  LANGFORD  v.  KING.  [Deo.  T. 

tions  of  such  contracts  are  mutual.  We  think  no  one,  upon 
a  careful  examination  of  those  provisions  of  the  statute  and 
this  warrant,  can  come  to  the  conclusion  that  the  Territory 
has  the  power  to  pay  it  in  money  or  in  taxes,  at  its  option. 
If  not,  then  it  was  no  part  of  this  contract  that  this  warrant 
should  be  received  in  payment  of  taxes.  We  might  proceed 
at  some  length  to  analyze  each  one  of  those  provisions  of  the 
statute,  cited  above,  and  show  that  they  cannot  have  the  effect 
claimed  by  respondent.  We  deem  it  sufficient,  however,  to 
say  that  they  are  general  laws,  which,  for  reasons  of  public 
policy,  gave  the  holders  of  warrants  the  privilege  of  paying 
them  over  in  liquidation  of  taxes.  And  as  such  they  would 
form  no  part  of  this  contract.  See  Sedg.  on  Stat.  and  Const. 
Law,  618,  633. 

But  let  it  be  granted  that  the  Territory  did  contract  with 
Green  C.  Smith  that  this  warrant  should  be  paid  out  of  any 
moneys  not  otherwise  appropriated,  or  that  it  might  be  paid 
over  in  liquidation  of  taxes.  Is  that  law,  repealing  those 
provisions  of  the  statute  which  gave  this  right  of  paying 
over  this  warrant  in  liquidation  of  taxes,  void,  as  violating 
that  provision  of  the  Constitution  of  the  United  States  pro- 
hibiting States  from  passing  any  law  impairing  the  obliga- 
tions of  contracts  ?  What  is  the  obligation  of  a  contract  ? 
It  is  that  which  gives  the  parties  thereto  the  legal  power  to 
enforce  it.  See  3  Pars,  on  Cont.  555,  note  s.  Montana 
Territory  is  a  government  created,  it  is  true,  by  a  law  of 
Congress.  Yet  that  law  gives  it  very  extensive  powers. 
The  reason  of  the  law,  which  declares  that  no  government 
can  be  sued  without  its  consent,  applies  to  this  territorial 
government  as  well  as  to  any  other  government. 

We  hold,  therefore,  that  unless  permitted  by  some  law 
of  this  Territory,  or  of  the  general  government,  no  citizen 
of  this  Territory  can  sue  it.  There  is  no  law  of  this  Terri- 
tory or  act  of  Congress  permitting  it.  There  is,  then,  no 
legal  power  to  enforce  territorial  contracts.  In  other  words, 
there  is  no  obligation  to  territorial  contracts.  They  rest 
simply  upon  the  good  faith  of  the  Territory.  Hence,  there 
was  no  legal  obligation  on  the  part  of  the  Territory  to  take 


1868. j  HUTCHIXSO.N   r.  IIAMPTOX.  39 

rhia  warrant  in  payment  of  taxes ;  and  the  law  which  took 
away  this  right  of  paying  it  over  in  liquidation  of  taxes,  did 
not  impair  the  obligation  of  the  contract,  because  there  was 
no  legal  obligation  to  this  contract,  whatever  the  moral 
obligation  may  have  been.  Had  the  warrant  been  presented 
in  payment  of  taxes  before  the  repeal  of  the  law  giving  this 
right,  the  right  would  then  have  become  a  vested  one,  and 
a  different  question  would  have  been  presented  to  us.  In 
support  of  these  views,  see  HwnsaJcer  \.  Borden,  5  Cal. 
•JS8  ;  Myers  v.  English,  9  Cal.  341. 

In  accordance  with  these  views,  we  hold  that  the  statute 
which  provides  that  all  taxes,  licenses  and  dues  payable  to 
the  Territory  should  be  paid  in  money,  unless  the  person 
owing  the  tax  or  license  should  hold  a  warrant,  issued  to 
himself,  for  services  rendered  the  Territory  by  him,  was  not 
void  as  to  this  warrant.  The  appellant,  as  tax  collector,  was. 
therefore,  bound  to  obey  it,  and  to  refuse  to  receive  this 
warrant  in  payment  of  the  Territory's  proportion  of  a 
license.  Hence  the  district  court  erred  in  awarding  the 
respondent  the  peremptory  writ  of  mandate. 

The  judgment  of  the  court  below  is,  therefore,  reversed, 
with  costs,  and  the  peremptory  writ  of  mandate  <!ciii<-(l. 

WA.RRBN,  C.  J.,  concurred. 


HUTCHINSON,  respondent,  v.  HA.MPTON  et  al.,  appellants. 

RECEIVKB  —  pay  taxed  as  costs.  A  receiver  of  property  in  controversy  in  an 
action  cannot  recover  judgment  for  his  services  against  ail  the  parties,  by 
a  motion  in  the  original  suit.  He  is  an  officer  of  the  court,  and  his  compen- 
sation should  be  allowed  out  of  the  property  in  his  hands,  or  taxed  as  costs. 

Appeal  from  the  First  District,  Madison  County. 

THE  parties  stipulated  in  writing  that  this  cause  should 
bo  heard  on  appeal  on  the  original  papers.     The  appellants; 


40  HUTOHINSON  v.  HAMPTON.  [Dec.  T., 

appealed  from  the  judgment  of  the  district  court,  HOSMEB, 
J.,  affirming  the  report  of  the  referee  in  favor  of  Hutchinson. 
The  facts  are  contained  in  the  opinion. 

DAVIS  &  THOBOUOHMAN,  for  appellants. 
H.  N.  BLAKE,  for  respondent. 


C.  J.  This  appears  upon  the  calendar  as  an 
action  in  which  Hutchinson  is  plaintiff  and  appellee,  and 
Columbus  Hampton  and  others  are  defendants  and  appel- 
lants. It  appears  from  the  record  that  Norval  Harrison 
et  al.  were  plaintiffs,  and  J.  M.  Chase  et  al.  defendants  in 
an  action  pending  in  the  first  judicial  district  court,  in  Madi- 
son county,  and  that  Hutchinson  was  appointed,  by  consent 
of  parties,  receiver  of  the  property  in  controversy  in  that 
cause,  and  that  he  acted  as  such  ;  and  applied,  at  the  termi- 
nation of  his  duties,  to  the  court  for  the  allowance  to  him 
of  $330,  as  compensation  for  his  official  services.  This  appli- 
cation was  referred  to  a  referee,  who  heard  testimony  and 
filed  his  report,  finding  the  facts,  reporting  $346.72  to  be 
due  the  receiver,  and  reporting,  as  a  conclusion  of  law.  that 
all  the  parties,  plaintiff  and  defendant  in  the  action,  were 
liable  to  him  for  that  amount.  To  this  report  the  appel- 
lants, or  some  of  them,  excepted  ;  their  exceptions  were 
overruled,  and  judgment  was  entered  by  the  court  upon  the 
report  of  the  referee,  for  the  sum  of  $346.72,  in  favor  of 
Hutchinson  as  plaintiff,  and  against  all  the  parties  to  the 
action  as  defendants,  together  with  costs  of  the  reference. 
and  that  execution  issue  therefor.  From  this  judgment 
appellants  have  not  properly  prosecuted  their  appeal,  but 
a  stipulation  is  filed  in  this  court  by  the  attorney  of  Hutch- 
inson, waiving  all  errors,  and  submitting  the  questions 
involved  to  this  court. 

The  court  below  erred  in  entering  the  judgment  against 
all  the  parties.  There  was  no  action  pending  in  which  such 
judgment  could  be  rendered.  If  Hutchinson  performed 
services  at  the  request  of  these  parties,  his  remedy  was  by 


1868.]        TERRITORY  OF  MONTANA  v.  DRENNAN.  41 

suit  against  them,  in  the  ordinary  manner,  not  by  motion 
in  a  separate  action. 

If  he  performed  services  as  a  receiver,  whether  appointed 
by  consent  of  parties  or  otherwise,  he  became  for  that  pur- 
pose an  officer  of  the  court,  and  his  compensation  should 
have  been  allowed  by  the  court  out  of  the  property  in  his 
hands,  or  taxed  as  costs  in  the  case.  Rejecting  the  conclu- 
sion of  law  of  the  referee,  from  the  facts  found  it  appears 
that  Hutchinson  acted  in  the  capacity  of  receiver  in  the 
cause  referred  to  ;  and  that,  deducting  the  interest,  there 
was  due  him,  as  compensation  to  which  he  was  reasonably 
entitled,  the  sum  of  $301.50.  This  amount  should  have 
been  allowed  him,  and  taxed  as  costs  in  the  cause  in  which 
he  acted  as  receiver. 

The  judgment  of  the  court  below  is  modified,  so  as  to 
accord  with  this  opinion,  and  the  clerk  of  that  court  is 
directed  to  tax  the  amount  hereby  found  due  to  Hutchinson 
as  receiver,  as  costs  in  the  cause  in  which  he  acted,  in  which 
Norval  Harrison  et  al.  were  plaintiffs,  and  J.  M.  Chase  et  al. 
were  defendants. 

Judgment  modified. 

KNOWLES,  J.,  concurred. 


TERRITORY  OF  MONTANA,  respondent,  v.  DRENNAN, 
appellant. 

ASSAULT  WITH  DEADLY  WEAPON  —  defense..  On  the  trial  of  a  party  indicted 
for  an  assault  with  a  deadly  weapon,  with  intent  to  inflict  upon  D.  a  bodily 
injury,  it  is  not  a  defense,  nor  a  part  of  the  res  (jestce,,  that  D.,  before  the 
assault  was  committed,  had  wrongfully  deprived  defendant  of  the  use  of 
water,  and  thereby  prevented  him  from  working  his  mining  ground. 

Appeal  from  tlie  Second  District,  Deer  Lodge  County. 

DRENNAX  was  tried  in  May,  1868.  in  the  second  district, 
upon  an  indictment  for  an  assault  with  intent  to  inflict  upon 
Patrick  Dal  ton  a  bodily  injury.     He  was  convicted  in  the 
VOL.  1  —  6. 


42  TERRITORY  OF  MONTANA  V.  D  REN  NAN.    [Dec.  T., 

district  court,  WILLISTON,  J.,  to  whose  rulings,  upon  the 
admission  of  evidence,  the  defendant  filed  exceptions,  which 
r>  e  contained  in  the  opinion  of  the  court. 

J.  A.  JOHNSTON,  for  appellant. 

Defendant  had  a  right  to  show  that  he  was  possessing 
and  using  the  water  and  mining  claim,  at  the  time  of  the 
assault  committed  upon  Dalton,  in  mitigation  of  the  offense. 
People  v.  Payne,  8  Gal.  341 ;  People  v.  Coslello,  15  id.  350. 

W.  J.  STEPHENS,  district  attorney,  second  district,  for 
respondent. 
No  brief  on  file. 

KNOWLES,  J.  Michael  Drennan,  the  above-named  defend- 
ant, was  indicted  for  the  crime  of  assaulting,  with  intent  to 
do  great  bodily  injury,  on  Patrick  Dalton,  and  was  tried  and 
convicted  of  the  same.  The  only  error  complained  of  by 
the  defendant  is  the  refusal  of  the  court  to  admit,  on  the 
trial,  the  evidence  set  forth  in  the  following  exceptions, 
to  wit : 

"Be  it  remembered  that  on  the  trial  of  this  cause,  the 
defendant,  Michael  Drennan,  introduced  as  a  witness  in  his 
behalf  one  John  Stoner,  by  whom  he  proposed  to  prove 
that  the  defendant  was  owner  of  a  mining  claim  in  Wash- 
ington gulch,  in  Deer  Lodge  county  ;  and  that  he  was  at 
work  mining  on  the  same  at  the  time  of  the  commission  of 
the  alleged  assault ;  and  that  he  was  using  the  natural 
water  of  said  gulch  for  the  purpose  of  working  his  said 
claim ;  and  that  Peter  Dalton,  upon  whom  said  assault  was 
alleged  to  have  been  committed,  without  any  right  so 
to  do.  shut  off  the  water  of  said  gulch,  out  of  and  away 
from  the  same,  so  that  this  defendant  was  deprived  of  the 
use  of  the  same,  and  thereby  prevented  from  working  on  his 
said  claim;  which  said  testimony  of  John  Stoner  was  pro- 
posed to  the  court  by  the  defendant,  to  be  corroborated  by 
a  number  of  competent  witnesses.  The  attorneys  for  the 
prosecution  objected  ;  which  said  objection  was,  by  the 
court,  sustained  :  to  which  said  ruling  of  the  court  the 


1808.]        TERRITORY  OF  MONTANA  v.  DKENNAN.  43 

counsel  for  the  defendant  then  and  there  objected,  and  ask 
that  this,  their  bill  of  exceptions,  be  signed  and  made  a  part 
of  the  record." 

The  only  grounds  upon  which  such  testimony  would  be 
admissible  are :  1.  That  it  was  a  defense  to  the  charge  in 
the  indictment ;  or,  2.  That  it  was  a  part  of  the  res  gestce. 

Should  it  have  been  admitted  as  a  defense?  It  is  true 
that  when  a  party  is  in  the  act  of  committing  a  forcible 
trespass  upon  the  person  of  another,  or  property  of  which  he 
is  in  possession,  force  may  be  used  by  the  assailed  sufficient 
to  repel  the  trespass.  But  it  does  not  appear,  from  the 
testimony  offered,  that  Patrick  Dalton  was  in  the  act  of 
committing  a  trespass  upon  the  property  of  the  defendant, 
of  which  at  the  time  he  was  in  possession,  and  that,  to  repel 
this  trespass,  he  was  compelled  to  use  the  force  he  did.  The 
evidence  goes  to  show  that  Dalton  had  already  shut  off  the 
water  from  the  defendant's  claim,  and  deprived  him  of  the 
use  of  it,  when  he  sought  to  redress  his  grievance  by  shoot- 
ing Dalton.  It  certainly  does  not  appear  that  the  defendant 
did  this  shooting  in  repelling  a  forcible  trespass  upon  his 
property,  of  which  he  was  in  the  actual  possession,  which 
Dalton  was  at  the  time  in  the  act  of  committing.  If  the 
defendant  had  offered  to  prove  such  facts,  they  would  cer- 
tainly have  been  admissible.  The  fact  that  the  defendant, 
while  he  was  in  possession  of,  and  working  his  mining  claim, 
shot  Daiton  because  he  had  shut  off  the  supply  of  water  in 
the  gulch,  which  the  defendant  may  have  been  entitled  to, 
is  surely  no  justification  of  the  offense  charged  in  the  indict- 
7tient. 

Were  the  facts  set  forth  in  the  exception  a  part  of  the  res 
gestcE  ?  What  defense  of  the  defendant  do  they  explain  or 
elucidate?  There  is  none  presented  to  us  in  the  record. 
We  have  already  seen  that  they  are  no  defense.  How  do 
they  present  the  principal  act.  namely,  the  shooting,  in  a 
favorable  light  ?  It  is  not  apparent  to  us.  These  facts  might 
have  been,  perhaps,  introduced  by  the  prosecution,  to  show 
malice,  and  the  motives  which  impelled  the  defendant  to 
•ommit  the  offense.  "Rut  t<>  entitV-  the  defendant  to  insist 


44  CHRISTNOT  v.  M.  G.  &  S.  M.  Co.       [Dec.  T. 

upon  the  introduction  of  these  facts  as  part  of  the  res  gestcs, 
they  must  be  necessary  to  elucidate  or  explain  some  defense 
of  the  defendant.  As  such  a  necessity  does  not  appear  in 
the  record,  we  are  compelled  to  hold  that  the  court  below 
properly  refused  to  admit  the  testimony. 

The  judgment  of  the  court  below  is,  therefore,  affirmed. 

Affirmed. 

WARREN,  C.  J.,  concurred. 


CHRISTNOT,  respondent,  v.  MONTANA  GOLD  AND  SILVER 
MINING  Co.,  appellant. 

MECHANIC'S  LIEN  —  accounts  —  appropriation  of  payments.  A  person  who  per- 
forms labor  for  another  under  a  contract,  and  is  entitled  to  a  lien  for  a  part 
of  said  labor,  and  can  have  no  lien  for  the  remainder,  can  charge  therefor 
under  two  distinct  accounts.  If  the  debtor,  at  the  time  of  the  payment  of 
any  sum,  fails  to  appropriate  the  same  to  either  of  these  accounts,  tb» 
creditor  can  do  so  before  he  makes  out  and  flies  his  lien. 

Appeal  from  the  First  District,  Madison  County. 

CHRISTNOT  commenced  this  action  against  the  defendant, 
a  foreign  corporation,  to  recover  for  services  performed  by 
him  under  a  contract  made  with  its  managing  agent  in 
Montana,  and  have  the  same  adjudged  a  lien  upon  the 
quartz  mill  of  defendant.  The  defendant  admitted  that  the 
amount  sued  for  was  due,  but  denied  that  plaintiff  was 
entitled  to  a  lien  as  a  mechanic  upon  its  property.  The 
action  was  tried  in  the  district  court,  WARREN,  J.,  and 
plaintiff  obtained  a  judgment  in  December,  1868. 

The  other  facts  are  stated  in  the  opinion  of  the  court. 

W.  F.  SANDERS  and  H.  jST.  BLAKE,  for  appellant. 

The  respondent  did  not  perform  all  the  services  upon  the 
appellant's  mill.  The  statement  shows  that  some  of  his 
time  was  occupied  in  making  sleds,  ox  frames,  mining  tubs, 
and  cutting  logs  and  working  upon  buildings  not  owned 
by  appellant.  The  court  below  should  have  separated  the 
items  of  respondent's  account,  and  determined  what  amount 
should  be  a  lien  upon  the  mill,  and  what  amount  should  be 


1868.]  CHRISTNOT  v.  M.  G.  &  S.  M.  Co.  45 

a  lien  upon  other  property  of  appellant.  The  amount  that 
was  not  a  lien  should  have  been  found  by  the  court. 

The  statute  requires  a  mechanic  to  perform  his  labor  upon 
the  building,  which  he  seeks  to  incumber  with  his  lien. 
Acts  1865,  332,  §  1.  Respondent's  work  upon  sleds,  ox- 
frames,  tubs,  etc.,  could  not,  under  this  statute,  be  a  lien 
upon  the  mill  or  any  buildings  of  appellant.  Respondent's 
work  upon  buildings  owned  by  his  brother  and  father  could 
not  be  a  lien  upon  appellant's  property. 

Respondent  never  made  any  legal  appropriation  of  appel- 
lant's payments  to  him  in  discharging  his  claims  for  labor 
upon  sleds,  desks,  tubs,  etc.  "  Said  appropriation  was  done 
by  advice  of  his  counsel  at  the  time  the  lien  was  drawn  up" 
Statement.  Christnot  should  have  made  a  specific  appro- 
priation of  the  money  at  the  time  he  received  it  from  appel- 
lant, if  it  was  due  to  him  on  distinct  accounts.  The  doctrine 
of  appropriation  applies  only  when  the  accounts  are  dis- 
tinct in  themselves,  and  are  so  regarded  and  treated  by  the 
parties.  If  the  whole  may  be  treated  as  a  continuous  con- 
tract, payments  are  generally  applied  to  the  earlier  items 
<>f  the  account.  2  Pars,  on  Cont.  629-633. 

Appellant  had  no  knowledge  of  any  pretended  appro- 
priation by  respondent.  Statement.  Respondent  could 
not  appropriate  the  payments,  as  claimed,  without  the 
knowledge  of  appellant.  2  Pars,  on  Cont.  631. 

The  requirements  of  the  statute,  securing  the  lien  to 
mechanics,  must  be  strictly  complied  with.  Bottomly  v. 
Rector.  2  Cal.  91,  3  Pars,  on  Cont,  276 ;  Blytlie  v.  Poult- 
ney.  31  Cal.  234. 

Respondent  must  prove  that  he  has  a  mechanic's  lien 
upon  appellant's  mill.  The  contract  for  constant  employ- 
ment, found  by  the  court  below,  does  not  affect  his  right  to 
the  lien  claimed.  If  it  is  impossible  to  ascertain  what  pro- 
portion of  the  judgment  can  become  a  lien  upon  appellant's 
property  :  or,  if  services  for  which  respondent  might  have 
a  lien  are  combined  with  other  charges  for  which  no  lien  is 
given,  respondent  loses  the  benefit  of  the  statute.  Edqar 
v.  SW/V»/rv.  17  Mo.  -_>71. 


46  CHRISTNOT  ».  M.  G.  &  S.  M.  Co.        [Dec.  r\\ 

W.  M.  STAFFORD  and  WORD  &  SPEATT,  for  respondent. 

Respondent  worked  as  a  mechanic,  under  a  contract,  for 
appellant.  No  act  of  appellant  could  remove  his  liability 
to  respondent  until  there  had  been  a  breach  of  or  refusal 
to  comply  with  the  contract  on  respondent's  part.  The 
statute  securing  a  lien  to  mechanics  is  intended  to  afford 
the  laborer  an  opportunity  to  secure  payment  for  his  ser- 
vices. The  lien  accrues  where  the  liability  attaches,  whether 
the  work  has  been  done  under  contract  or  otherwise.  Where 
a  contract  exists,  the  act  of  the  employer,  preventing  the 
laborer  from  fulfilling  his  part  of  the  contract,  will  not 
affect  the  rights  of  the  laborer  under  the  lien  law. 

Respondent  made  tubs,  etc.,  during  the  existence  of 
appellant's  contract  to  pay  him  five  dollars  per  day  until 
the  mill  was  completed,  and  his  right  to  a  lien  was  not 
impaired  thereby.  The  court  has  determined  the  amount 
that  should  be  secured  by  a  lien,  and  that  the  remainder 
has  been  paid. 

Respondent  had  the  right  to  appropriate  all  payments 
made  by  appellant  on  his  account.  If  neither  party  makes 
a  specific  application  of  the  money,  the  law  appropriates  it. 
according  to  the  justice  and  equity  of  the  case.  Payments 
are  not  applied  to  the  earlier  items  of  an  account,  if  a  dif- 
ferent intention  can  be  gathered  from  the  circumstances  of 
the  case.  There  are  many  exceptions  to  the  rule  that  pay- 
ments made  generally  are  presumed  to  have  been  made  in 
discharge  of  the  earlier  items  of  an  account.  2  Par?,  on 
Cont.  631-633  ;  Chitty  on  Cent,  645,  649,  and  notes. 

It  is  conceded  that  respondent  appropriated  the  payments 
made  to  him  by  appellant  before  filing  his  lien  and  bringing 
this  suit.  The  law  fixes  710  time  for  the  creditor  to  make 
the  appropriation  of  the  payments.  Respondent  could 
make  it  at  any  time,  if  the  rights  of  third  persons  were  not 
affected.  Chitty  on  Cont.  645,  n.  2. 

KNOWLES.  J.  The  respondent  Ohristnot  brought  an 
action  in  the  court  below  to  foreclose  a  mechanic's  lien  upon 
a  quartz  mill  of  the  appellant,  the  Montana  Gold  and  Silver 
Mining  Company.  The  court  gave  the  respondent  judg- 


1868. J  CHRISTNOT  a.  M.  G.  &  S.  M.  Co.  47 

ment,  and  a  decree  for  the  sale  of  said  mill  property  to 
satisfy  the  same. 

The  appellant  made  a  motion  for  a  new  trial,  which  the 
court  denied  ;  from  which  order  the  appellant  appealed  to 
this  court 

From  the  evidence  set  forth  in  the  bill  of  exceptions,  it 
appears  that  the  respondent  entered  into  a  contract  with 
appellant  to  perform  mechanical  labor  on  and  about  the 
said  quartz  mill  of  appellant,  for  $5  per  day  ;  that  this 
was  less  than  the  usual  price,  but  was  consented  to  by 
respondent  on  the  promise  of  constant  employment ;  that 
he  performed,  under  the  orders  of  the  agent  of  the  appel- 
lant, work  upon  a  house  for  the  agent ;  that  at  different 
times  he  worked  at  making  sleds,  ox  frames,  tubs  and  cut- 
ting logs  for  the  appellant,  etc. ;  that  respondent  worked  on 
the  mill  one  hundred  and  ten  days ;  that  appellant  paid 
him  certain  amounts  on  his  labor  ;  that  at  the  time  of  mak- 
ing out  his  lien,  he  appropriated  these  payments,  first,  in 
liquidation  of  the  account  for  labor  not  performed  on  the 
mill,  and  then  in  payment  for  the  labor  on  the  mill,  so  far 
as  it  would  go.  It  is  not  denied  there  is  still  due  respondent, 
on  all  the  labor  performed,  the  balance  he  claims.  It  is  not 
contended  that  the  appellant  at  any  time  appropriated  these 
payments. 

The  main  question  presented  in  this  case  is.  had  the 
respondent  the  right  to  appropriate  the  payments  to  him  in 
liquidation  of  the  labor  performed  by  him  not  on  the  mill. 

It  is  contended  by  the  appellant  that  the  account  between 
respondent  and  appellant  was  one,  not  different  accounts  ; 
and  that  the  respondent  had  no  right  to  select  out  certain 
items,  and  apply  the  money  he  received  in  payment  of 
them.  The  evidence  shows  that  the  respondent  was  hired 
by  appellant  to  perform  labor  in  a  quartz  mill.  If  respond- 
ent performed  labor,  which  cannot  be  treated  as  labor  <>n 
the  said  quartz  mill,  then  the  respondent  has  two  distinct 
accounts,  not  one.  The  one  hundred  and  tori  days'  labc  r 
were  performed  under  an  express  contract  for  work  on  a 
quartz  mill  and  its  appurtenances.  The  balance  of  the  work 


48  CHRISTNOT  v.  M.  G.  &  S.  M.  Co.       [Dec.  T., 

was  not  on  this  quartz  mill,  or  its  appurtenances ;  and 
hence,  was  not  performed  under  this  contract.  The  com- 
pany was  liable  for  this  labor  on  an  implied  contract.  It  is 
not  contended  that  the  original  contract  was  ever  varied  or 
waived.  The  respondent  treated  the  work  done  by  the 
orders  of  the  agent  of  the  appellant,  on  his  house,  as  work 
performed  for  the  company.  What  issues  were  presented 
to  the  court  below  we  do  not  know,  as  the  pleadings  in  the 
cause  are  not  made  a  part  of  the  transcript.  From  the  evi- 
dence set  forth  in  the  bill  of  exceptions,  and  from  the  brief 
filed  by  the  appellant,  this  court  is  warranted  in  the  infer- 
ence that  there  was  no  issue  presented  to  the  court  below 
upon  the  amount  of  indebtedness,  but  only  as  to  the  amount 
for  which  respondent  was  entitled  to  a  lien  upon  the  quartz 
mill.  If  there  was  such  an  issue  presented,  from  the  evi- 
dence set  forth  in  the  transcript,  this  court  could  not 
determine  whether  the  court  below  had  taken  into  consider- 
ation the  amount  of  labor  performed  upon  the  building  of 
the  agent,  in  making  up  its  findings  of  the  amount  of  labor 
performed  for  appellant  by  respondent  or  not.  Hence  it 
will  be  seen  there  is  not  enough  presented  in  the  record  to 
warrant  us  in  interfering  with  the  findings  of  the  court  below 
on  this  point. 

The  respondent,  having  two  distinct  accounts,  could,  ai 
any  time  before  he  made  out  and  filed  his  lien,  as  the  appel- 
lant had  not  up  to  that  time  appropriated  the  payments 
made  to  respondent,  appropriate  them  to  the  payment  of 
either  account.  See  Haynes  v.  Waite,  14  Cal.  446 ;  Field 
et  al.  v.  Holland  et  al..  1  Am.  Lead.  Cas.  276. 

We  are  inclined  to  hold  that  where  a  party  performs  labor 
for  another  in  a  case  where  he  would  be  entitled  to  a  lien 
for  one  part  of  his  labor,  and  not  for  the  balance,  he  may 
properly  charge  for  his  labor  under  two  different  accounts. 
And  if  the  debtor,  at  the  time  of  payment  of  any  sum  to  the 
creditor,  fails  to  make  an  appropriation  to  one  or  the  other 
of  the  accounts,  the  creditor  may  do  so  at  any  time  before 
he  files  his  lien. 

The  respondent  having  appropriated  the  money  paid  to 


1868.]  MARDEN  o.  WHEELOOK.  49 

him  by  appellant,  first  in  payment  for  the  labor  not  per- 
formed in  the  quartz  mill,  and  then,  as  far  as  the  balance 
would  go,  upon  the  labor  on  the  said  mill.  And  it  appear- 
ing that  the  court  below  gave  respondent  judgment  for 
$398.50  less  than  the  value  of  the  one  hundred  and  ten  days' 
labor  performed  in  the  said  mill,  we  can  find  no  error  in  the 
ruling  of  the  court  below. 
The  order  and  judgment  of  the  court  below  is  affirmed 

with  costs. 

Affirmed. 
WARREN,  C.  J.,  concurred. 


MARDEN,  respondent,  «.  WHEELOCK  et  al.,  appellants. 

PRACTICE  —  issues  of  law  —  waiver  of.  Issues  of  law  should  bo  disposed  01 
before  issues  of  fact  are  tried ;  but  this  right  is  waived  by  a  party  who  goef 
to  trial  upon  the  facts,  without  insisting  upon  a  demurrer,  which  has  been 
filed  in  the  action. 

GARNISHES  —  when  protected  by  stay  of  execution.  If  an  action  is  pending 
between  M.  and  W.,  and  W.  is  served  with  garnishment  as  the  debtor  of  M. 
in  an  attachment  suit  subsequently  commenced,  the  court  should  proceed 
with  the  first  action  to  final  judgmen  ,  and  protect  W.,  as  garnishee,  if 
necessary,  by  staying  execution  until  the  attachment  suit  is  determined. 

PHACTICE  —  intermediate  proceedings  reviewed.  On  an  appeal  from  a  judgment, 
this  court  can  review  the  intermediate  proceedings  and  afford  relief. 

PRACTICE— oral  instructions — not  error.  It  is  not  error  for  a  judge  of  the 
district  court  to  give  oral  instructions. 

COSTS  —  when  presumed  correct.  It  is  a  presumption  that  the  costs  entered  by 
the  clerk,  in  a  judgment,  have  been  properly  ascertained  and  taxed. 

Appeal  from  IJie  Third  District,  Lewis  and  Clarke  County. 

MARDEN  commenced  this  action  in  May,  1867,  against 
the  defendants  upon  two  promissory  notes  made  by  them 
to  plaintiff.  After  the  answer  and  replication  had  been 
filed,  the  defendants  filed  an  "additional  answer"  on  June 
13,  1868,  and  alleged  that  G.  W.  Morse  had  commenced  a 
suit  against  Marden  on  that  day,  and  garnished  the  defend- 
ants as  the  debtors  of  Marden.  They  asked  the  court  to 
stay  proceedings  in  the  action  against  them  until  the  attach- 
VOL.  1  —  7. 


60  HARDEN  «.  WHEELOCJV  [Dec.  T. 

rnent  suit  of  Morse  was  disposed  of.  The  court,  MU.NSON, 
J.,  denied  the  application,  and  proceeded  to  the  trial  of  the 
cause  upon  June  15,  1868.  A  demurrer,  which  had  been 
filed  on  July  12,  1867,  by  plaintiff  to  the  original  answer 
of  the  defendants,  was  never  argued  nor  passed  upon. 

The  jury  returned  a  verdict  for  plaintiff  for  $3,250,  upon 
which  judgment  was  entered  by  the  court. 

The  defendants  filed  the  following  objections  to  the  in- 
structions of  the  court :  "  Defendant's  object  to  the  instruc- 
tions of  the  court  upon  the  ground  the  same  were  not  law, 
and  that  they  were  given  orally." 

The  court  overruled  the  defendants'  motion  for  a  ne\v 
trial,  and  defendants  appealed. 

Before  the  argument  of  this  cause  on  the  appeal,  respond- 
ent filed  the  affidavit  of  A.  M.  Woolfolk,  stating  that  he 
was  one  of  Marden's  attorneys;  that  the  suit  of  Morse  v. 
Marden  had  been  settled  between  the  parties  ;  and  that  the 
same  so  appeared  upon  the  records  of  the  court  in  Lewis 
and  Clarke  county 

CHUM ASERO  &  CHADWICK,  for  appellants. 
No  brief  on  file. 

WOOLFOLK  &  TOOLE,  tor  respondent. 

The  respondent  had  a  right  to  abandon  his  demurrer  and 
go  to  trial  upon  the  truth  of  the  facts  of  the  defendants' 
answer.  No  exception  was  saved  upon  this  point  by 
appellant,  as  required  by  law. 

Appellants  do  not  show  that  they  were  injured  by  thr 
ruling  of  the  court  below  in  refusing  a  continuance  on 
account  of  the  garnishment  in  the  case  of  Morse  v.  Maiden. 
Appellants  saved  nc  exception  upon  this  point.  Prac.  act. 
1867,  §  188. 

The  affidavit  of  A.  M.  Woolfolk,  on  file,  shows  that  the 
case  of  Morse  v.  Marden  has  been  settled,  and  the  garnish- 
ment is  inoperative. 

The  bill  of  costs  filed  in  the  lower  court  is  not  embraced 
in  the  record.  Appellants  furnish  no  evidence  to  show  that 
no  bill  of  costs  was  filed.  If  there  was  error  in  this  respect, 


1868.]  MARDEN  v.  WHEELOOK.  51 

the  remedy  was  by  motion  to  retax  the  costs  in  the  lower 
court. 

WARREN,  C.  J.  The  transcript  of  the  record  tiled  in  this 
cause  does  not  show  any  statement,  in  compliance  with  the 
statute,  to  have  been  filed  in  the  court  below  on  the  motion 
for  a  new  trial,  specifying  the  particulars  in  which  the  evi- 
dence is  alleged  to  have  been  insufficient,  or  the  particular 
errors  in  law  alleged  as  occurring  on  the  trial ;  no  excep- 
tions appear  to  have  been  taken  and  preserved  in  the 
record  ;  and  the  appellants  have  not  annexed  any  state- 
ment on  appeal  to  this  court.  No  order  seems  to  have  been 
entered  upon  the  motion  for  a  new  trial,  and  the  appeal  is 
from  the  judgment  entered  on  the  verdict  of  the  jury  below, 
generally. 

The  appellants  have  tiled  in  this  court,  for  the  first  time, 
an  assignment  or  specification  of  errors,  which,  as  an 
appellate  court,  we  must  consider  in  the  light  of  the  record 
furnished  us. 

The  first  error  alleged  is  in  proceeding  to  trial  of  the 
cause  without  first  disposing  of  respondent's  demurrer  to 
appellant's  answer. 

Under  our  practice  a  party  may  demur  and  answer  01 
reply  at  the  same  time  ;  and  filing  an  answer  or  replication 
does  not  waive  a  demurrer  previously  filed,  and  issues  of 
law  should  be  disposed  of  before  issues  of  fact  are  tried. 
A  party,  however,  may  unquestionably  waive  these  rights, 
and  does  waive  them  by  going  to  trial  upon  the  facts  with 
out  insisting  upon  his  demurrer,  especially  if  the  opposite 
party  does  not  call  it  up.  The  latter  party  is  not  injured  in 
such  case  ;  and  it  is  not  for  him  to  complain,  upon  appeal, 
as  no  injury  has  been  or  could  be  sustained  by  him  in  con- 
sequence. 

The  next  error  assigned  is  in  the  action  of  the  court  below 
in  refusing  to  stay  proceedings  in  this  suit,  until  the  deter- 
mination of  the  attachment  suit  subsequently  commenced 
and  pending  in  the  same  court,  in  which  the  appellants  wen- 
served  with  garnishment  as  debtors  of  respondent,  in  accord- 


62  HARDEN  v.  WHBELOOK.  [Dec.  T. 

ance  with  the  application  for  that  purpose  of  appellants, 
filed  as  a  supplemental  answer  in  this  cause. 

This  is  a  question  of  practice  which,  perhaps,  is  not  fully 
settled. 

It  cannot  be  maintained  that  the  garnishment  of  appel- 
lants, before  answer  and  judgment  against  them,  in  any 
way  affected  the  relations  or  rights  of  the  parties  to  this 
suit,  so  far  as  the  issues  involved  in  it  are  concerned.  All 
that  the  appellants  could  rightfully  ask  was  that  they  be 
protected  against  double  liability ;  and,  in  fact,  their  own 
application  was  that  such  action  might  be  taken  by  the 
court,  by  continuance  of  this  cause  or  otherwise,  as  would 
protect  them.  This  protection  could  be  afforded  in  one  of 
two  ways :  either  by  suspending  proceedings  in  this  cause 
until  the  determination  of  the  attachment  suit  against 
respondent,  or  by  proceeding  in  this  cause  to  final  judg- 
ment, in  the  mean  time  protecting  appellants  as  garnishees, 
and  staying  execution,  if  necessary,  to  await  the  result  of 
the  attachment. 

We  are  of  opinion  that  the  latter  is  the  proper  and  equi- 
table course,  and  that  the  court  below  committed  no  error  in 
refusing  the  continuance  applied  for.  This  suit  was  first 
commenced,  and  both  were  pending  in  the  same  court. 
The  court  could  and  should  protect  the  appellants  ;  and,  so 
far  as  the  record  shows,  did  so.  It  does  not  appear  that 
judgment  was  recovered  in  the  attachment  against  respond- 
ent as  defendant,  or  against  appellants  as  garnishees,  or 
that  the  attachment  and  garnishment  remained  pending  at 
the  time  of  rendition  of  the  judgment  in  this  cause.  If  such 
appeared  to  be  the  fact,  and  the  court  had  failed  to  stay 
the  execution  under  the  judgment  in  this  cause,  the  appel- 
lants would  have  sustained  injury,  and  on  appeal  from  the 
judgment,  under  our  practice,  this  court  could  and  would 
have  reviewed  the  intermediate  proceedings,  and  afforded 
appellants  relief.  Upon  the  record  before  us,  appellants  do 
not  appear  to  have  been  injured  by  the  action  of  the  court 
in  refusing  to  stay  the  proceedings,  and,  consequently,  there 
is  nothing  to  justify  the  interposition  of  this  court. 


1868.]  COPE  v.  U.  M.  M.  &  P.  Co.  6ft 

As  to  the  third  error  specified,  all  the  record  shows  upon 
the  subject  is  an  "objection"  of  the  appellants  to  the 
instructions  of  the  court  below,  "upon  the  ground  the  same 
was  not  law,  and  that  they  were  given  orally."  The  instruc- 
tions given  are  not  preserved  ;  the  fact  that  they  were  given 
orally  is  no  error  ;  and  the  record  does  not  show  a  request 
on  the  part  of  appellants  that  they  should  be  reduced  to 
writing  by  the  court.  A  mere  motion  of  a  party  filed  in  a 
cause,  assuming  that  certain  facts  exist,  cannot  be  regarded 
as  a  substitute  for  a  bill  of  exceptions,  or  statement  of  facts 
agreed  on  by  the  parties,  or  certified  by  the  court,  as  con- 
templated by  our  statute. 

The  clerk  has  entered  the  costs  in  the  judgment  rendered, 
and  the  presumption  is  that  they  were  properly  ascertained 
and  taxed.  The  memorandum  furnished  by  the  party  of 
his  items  of  costs  need  not  necessarily  form  part  of  the 
transcript  on  appeal. 

The  judgment  of  the  court  below  is  affirmed,  with  costs. 

Affirmed. 
KNOWLES,  J.,  concurred. 


COPE,  respondent,  v.  UPPER  MISSOURI  MINING  AND  PROS- 
PECTING Co.,  appellant. 

ATTACHMENT  —  dissolution  of.  The  defective  statement  of  a  cause  of  action 
in  the  pleadings  is  not  a  ground  for  dissolving  the  attachment. 

ATTACHMENT  —  affidavit.  An  affidavit  for  an  attachment,  which  sets  forth  that 
the  amount  is  due  "upon  in  part  of  both  an  express  and  implied  contract," 
without  specifying  how  much  is  due  upon  each  contract,  is  sufficient  ;  but 
this  affidavit  is  not  a  model  of  pleading. 

ATTACHMENT  LAW  REMEDIAL.  The  attachment  law  is  a  remedial  statute  and 
must  be  liberally  construed. 

Appeal  from  the  First  District,  Madison  County. 

COPE  commenced  this  action  in  February,  1868,  to  recover 
for  services  performed  and  goods  sold  and  delivered.  The 
complaint  contained  the  following  verification  and  affidavit 
of  the  respondent : 


54  COPE  v.  U.  M.  M.  &  P.  Co.  [Dec.  T., 

''George  F.  Cope,  plaintiff  in  the  above  suit,  makes  oath 
and  says,  the  facts  as  stated  in  the  foregoing  complaint  have 
been  read  to  him,  and  that  he  knows  of  his  own  knowledge 
they  are  as  stated  therein  true.  Affiant  says,  on  his  said 
oath  aforesaid,  that  said  defendant  is  indebted  to  the  plaintiff* 
in  the  sum  of  $4,253.30,  over  and  above  all  legal  set-offs  and 
counter-claims  upon  (in  part  of  both  an  express  and  implied 
contract),  for  the  direct  payment  of  money,  and  that  such 
expressed  and  implied  contract  was  made  and  are  payable 
in  this  Territory,  and  that  the  payment  of  the  same  has  not 
been  secured  by  any  mortgage,  lien  or  pledge  upon  real  or 
personal  property  ;  that  the  defendant  is  a  non-resident  of 
the  Territory,  and  a  foreign  corporation  ;  that  the  sum  afore- 
said set  out  in  this  affidavit,  and  for  which  the  attachment 
is  asked,  is  an  actual  bona  fide  existing  debt,  due  and  owing 
from  said  defendant  to  the  plaintiff ;  and  that  this  attach- 
ment is  not  sought,  and  the  action  is  not  prosecuted  to 
hinder,  delay  or  defraud  any  creditor  or  creditors  of  said 
defendant." 

An  undertaking  was  filed  by  Cope,  according  to  law,  and 
the  writ  of  attachment  was  then  issued  by  the  clerk  of  the 
court.  The  defendant  appeared  by  its  attorneys,  and  moved 
to  dismiss  the  writ  of  attachment  on  account  of  the  insuffi- 
ciency of  the  affidavit.  The  court,  WARREN,  J..  denied  the 
motion,  and  defendant  excepted. 

W.  F.  SANDERS  and  H.  N.  BLAKE,  for  appellant. 

The  paper,  termed  the  affidavit  for  the  attachment,  per- 
forms a  double  office,  and  also  forms  the  verification  of  the. 
respondent's  complaint.  The  verification  of  a  complaint, 
and  the  affidavit  for  an  attachment,  are  regarded  by  the 
statutes  as  distinct  and  separate.  Acts  1867,  156,  §  121. 
affidavit  for  attachment ;  Acts  1867,  144,  §  55,  verification  of 
complaint.  The  law  does  not  regard  with  favor  pleadings 
of  a  hybrid  character,  like  those  above  specified.  Andrtwx 
v.  Kokelumvne  Hill  Co..  1  Cal.  334. 

The  affidavit  should  show  the  amount  of  the  indebtedness 
upon  a  "contract,  express  or  implied."  It  should  show 
what  is  due  under  each  contract.  The  respondent's  :ifndu- 


1866.]  Co  IMS  0.   U.  M.  M.  &  P.  Co.  55 

vit  states  that  the  indebtedness  is  due  in  part  upon  both. 
Acts  of  1867,  156,  §  121 ;  Hawley  v.  Delmas,  4  Cal.  196. 
Uncertainty  m  the  affidavit  will  vitiate  it.  Drake  on  Attach., 
§  104.  This  statute  must  be  construed  strictly.  Roberts  v. 
Landecker,  9  Cal.  262. 

DAVIS  &  THOROUGHMAN,  for  respondent. 
No  brief  on  11  le. 

KNOWLES,  J.  This  cause  comes  to  this  court  on  appeal 
from  an  order  overruling  a  motion  to  dissolve  an  attachment 
proceeding. 

The  first  point  relied  upon  by  the  appellant  in  support 
of  his  motion  is,  that  the  attachment  proceeding  is  void,  for 
the  reason  that  in  the  affidavit,  upon  which  the  attachment 
proceeding  is  founded,  the  facts  necessary  for  the  verifica- 
tion of  the  complaint  are  set  forth.  It  is  contended  that 
this  alone,  notwithstanding  there  may  be  sufficient  set  forth 
in  the  affidavit  to  sustain  the  attachment  writ,  is  such  a 
defect  that  the  court  should  have  dissolved  the  whole  pro- 
ceeding. No  attachment  will  be  dissolved  for  surplusage 
in  the  affidavit.  The  facts  verifying  the  complaint  may 
properly  be  treated  as  surplusage,  as  far  as  the  attachment 
proceeding  is  concerned.  The  fact  that  there  may  be  no 
verification  to  the  complaint,  is  not  such  a  defect  as  to  war- 
rant the  dissolving  the  attachment  proceeding.  If  the  action 
should  be  dismissed,  upon  proper  motion,  for  this  defect, 
of  course,  the  attachment  proceeding,  being  auxiliary, 
would  fall  with  it.  But.  because  the  cause  of  action  is 
improperly  or  defectively  stated  in  the  complaint  is  no 
ground  for  dissolving  an  attachment. 

The  second  point  relied  upon  by  the  appellant  is,  that 
this  affidavit  having  been  tiled  to  perform  the  double  pur- 
pose of  a  verification  to  a  complaint  and  of  an  affidavit,  is 
a  pleading  of  a  hybrid  character,  and  not  favored  in  law. 
And  the  cast'  of  Andrews  v.  Mnkelumite  Hill  Co.,  7  Cal.  334, 
is  cited  to  support  this  view.  In  that  case  a  demurrer  and 
answer  vvere  united  in  the  same  pleading,  and  it  was  not 
decided  that,  for  this  reason,  there  \va-~  neither  demurrer 


66  COPE  v.  U.  M.  M.  &  P.  Co.  [Dec.  T.; 

nor  answer  in  the  action ;  but  the  whole  pleading  was 
treated  as  an  answer ;  and  we  hold  that,  in  this  case,  we 
would  not  be  justified  in  saying  there  is  no  affidavit  for  an 
attachment. 

The  third  point  presented  by  the  appellant  is,  that  the 
affidavit  is  fatally  defective,  because  it  is  set  forth  therein 
that  the  defendant  is  indebted  to  the  plaintiff  in  a  certain 
amount,  naming  it,  "  upon,  in  part,  of  both  an  express  and 
implied  contract  for  the  direct  payment  of  money." 

It  is  contended  that  the  affidavit  should  state  how  much 
is  due  upon  the  express,  and  how  much  upon  the  implied 
contract.  It  would  have  been,  no  doubt,  better  practice  to 
have  stated  how  much  was  due  on  each  contract.  It  is  not 
necessary,  however,  for  a  party  seeking  an  attachment  to 
set  out  in  his  affidavit  therefor  his  cause  of  action  with  any 
great  particularity.  It  is  sufficient,  if  the  statute  be  sub- 
stantially complied  with.  The  case  of  Hawley  v.  Delmas, 
4  Cal.  195,  cited  by  the  appellant,  is  not  in  point.  That 
was  a  case  where  the  grounds  for  the  attachment  were  set 
forth  in  the  affidavit,  in  the  alternative.  Alternative  plead- 
ings have  ever  been  considered  bad.  In  this  case  the 
grounds  were  stated  conjunctively.  Drake  on  Attach- 
ments, 104,  cited  by  appellant  to  sustain  the  view  that  the 
attachment  is  void  for  uncertainty,  because  the  cause  of 
action  is  stated  in  the  affidavit  as  above,  is  not  authority  in 
this  case.  The  case  there  cited  is  one  decided  in  the  State 
of  Louisiana,  and  based  upon  a  statute  which  required  the 
party  seeking  the  attachment  to  state  how  much  was  due. 
The  affidavit  alleged  that  the  defendant  was  indebted  to  the 
plaintiff  in  a  certain  amount,  a  part  then  due  and  a  part  to 
become  due.  The  court  held,  very  properly,  that,  as  the 
statute  required  the  applicant  to  state  how  much  was  due. 
and,  as  they  could  not  tell  this  from  the  affidavit,  it  was 
fatally  defective. 

It  will  be  seen  by  reference  to  that  section  of  the  attach- 
ment law,  providing  what  must  be  set  forth  in  the  affidavit, 
to  warrant  the  issuing  the  writ,  that  the  second  ground  foi 
attachment  does  not  require  that  it  should  be  set  forth  in 


1868.]         BROWN  a.  G.  &  S.  G.  &  S.  M.  Co.  57 

the  affidavit  whether  the  debt  is  due  upon  an  express  or 
implied  contract  or  not.  It  is  set  forth  in  the  affidavit  that 
the  defendant  is  a  non-resident  of  the  Territory.  There  is 
enough  to  warrant  the  issuing  of  the  attachment  under  this 
head.  The  statute  has  been  substantially  complied  with. 

It  is  not  true,  as  claimed  by  the  appellant,  that  the 
attachment  law  should  be  strictly  construed.  Being  a 
remedial  statute,  it  should  be  liberally  and  beneficially 
expounded. 

There  were  other  points  presented  in  the  bill  of  excep- 
tions, but,  as  they  were  not  set  forth  in  the  brief  of  the 
appellant,  they  will  be  deemed  waived. 

In  conclusion,  we  may  be  permitted  to  say,  that,  while 
we  hold  this  affidavit  to  be  sufficient  to  sustain  the  attach- 
ment writ,  we  do  not  regard  it  as  a  model. 

It  exhibits,  on  the  part  of  the  one  who  framed  it,  great 
carelessness,  or  a  lamentable  ignorance  of  the  most  common 
forms  of  judicial  procedure. 

The  order  of  the  court  below  is  affirmed,  with  costs. 

Affirmed. 
WARREN,  C.  J.,  concurred. 


BROWN,  appellant,  v.  GASTON  AND  SIMPSON  GOLD  AND 
SILVER  MINING  COMPANY,  respondent. 

SUMMONS — proof  of  service  —  affidavits.  The  service  of  a  summons  should  be 
proved  by  the  return  of  the  officer,  or  the  written  acknowledgment  of  the 
party  served.  It  is  improper  practice  to  establish  this  fact  by  the  affidavit 
of  persons  who  were  absent  when  the  service  was  made. 

PRACTICE  —  default, — how  set  aside.  A  default  can  be  set  aside  without  show- 
ing excusable  neglect,  if  the  summons  has  been  defectively  served. 

AGENT  —  declaration  of — authority.  The  declaration  of  an  agent  of  a  corpora- 
tion, respecting  his  authority,  is  hearsay  testimony. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

BROWN  commenced  this  action  in  December,   1867,  for 
services  in  erecting  a  quartz  mill  for  defendant,   and   to 
enforce  his  lien  as  a  mechanic  therefor.     The  sheriff  sei  ved 
VOL.  1—8 


58  BROWN  v.  G.  &  S.  G.  &  S.  M.  Co.         [Dec.  T., 

Che  summons  upon  Rodman  Carter  and  made  his  return, 
which  is  stated  in  the  opinion  of  the  court.  The  clerk  of 
the  district  court  entered  the  default  of  the  defendant,  and 
a  judgment  in  favor  of  the  plaintiff,  and  made  a  minute  of 
these  proceedings  in  the  "  minute  book"  of  the  court,  which 
was  approved  and  signed  by  MUNSON,  J.  On  January  11, 
1868,  the  defendant,  by  its  attorney,  moved  to  set  aside  the 
default  and  vacate  the  judgment.  On  January  30,  1868, 
the  court,  MUNSON,  J.,  made  the  following  order  upon  this 
motion : 

"In  this  case  I  am  satisfied  the  judgment  is  bad,  and 
cannot  be  held  upon  the  pleadings  and  papers  on  file  in  the 
case.  After  argument  counsel  for  plaintiff  asks  leave  to  file 
affidavits  to  cure  defects  and  show  that  R.  Carter,  upon 
whom  service  was  attempted  to  be  made,  was  the  acting 
agent  of  said  company,  with  power  to  accept  service.  The 
plaintiff  has  leave  to  file  said  affidavits,  and  defendants 
have  like  leave  to  file  counter  affidavits.  Said  cause  is  con- 
tinued one  week  for  such  purpose,  with  stay  of  proceedings 
on  said  judgment  for  such  time  and  until  further  order  of 
this  court  in  the  premises." 

The  plaintiff  afterward  filed  the  affidavits  of  Burdick. 
King  and  Cowan,  and  defendant  filed  none.  Upon  reading 
these  affidavits,  the  court,  MUNSON,  J.,  on  February  7. 1868, 
made  an  order  as  follows  : 

"On  reading  and  filing  affidavits  on  behalf  of  plaintiff 
herein,  under  the  order  of  this  court  of  January  30.  1868. 
and  the  certificate  of  the  clerk  that  no  affidavits  have  been 
filed  by  the  defendants  under  said  order,  and  the  time 
allowed  in  said  order  for  filing  affidavits  herein  having 
expired.  Now,  on  motion  of  Williams  &  Burdick,  said 
motion  is  overruled,  and  said  judgment  heretofore  entered 
in  the  above  action  stands  as  the  judgment  of  this  court  as 
rendered.'' 

On  February  11,  1868,  the  court,  Muisrsoisr,  J.,  made  the 
following  order  in  this  cause  : 

"The  January  term  of  this  court  having,  on  the  4th  day 
of  February,  adjourned  for  the  term,  and  all  causes  and 


J868.]  BROWN  v.  G.  &  S.  Of.  &  S.  M.  Co.  59 

motions  not  specially  disposed  of  having  been  continued 
till  the  March  term  of  said  court,  the  order  at  chambers  on 
the  7th  inst.  being  premature  and  out  of  time,  the  same  is 
hereby  revoked  and  set  aside,  and  said  causes  and  motions 
therein  are  continued  till  said  March  term  of  said  court  for 
final  order  in  the  premises." 

On  March  6,  1868,  the  court,  MuxsoN',  J.,  made  the  fol- 
lowing order  on  the  motion  of  defendant  to  open  the  default, 
and  set  aside  the  judgment  for  defective  service  : 

•'  I  think  the  affidavits  in  the  above-named  cause,  although 
they  do  not  show  all  that  has  been  required  in  similar  cases 
in  some  States  to  be  good  service,  yet  I  will  hold  them  suf- 
ficient for  that  purpose,  and  let  the  parties  have  the  benefit 
of  the  ruling.  Motion  allowed,  default  opened  and  judg- 
ment set  aside,  with  leave  to  defendants  to  move  to  file 
answer  on  or  before  Monday,  March  9,  1868." 

The  answer  of  the  defendant  was  filed  on  March  7,  1868, 
and  alleged  that  defendant,  on  February  6,  1868,  was 
adjudged  a  bankrupt  in  the  district  court  of  the  United 
States,  for  the  eastern  district  of  Pennsylvania,  under  the 
provisions  of  the  act  of  congress,  entitled  "  An  act  to  estab- 
lish a  uniform  system  of  bankruptcy  throughout  the  United 
States,''  approved  March  2,  1867. 

The  plaintiff  appealed  from  the  order  of  the  court,  dated 
March  6.  1868. 

This  cause,  and  that  of  Lamb  against  the  same  defendant, 
reported  on  page  04,  were  argued  together. 

SHOBEK  &  LOWKY  and  H.  N.  BLAKE,  for  appellants. 

WILLIAMS  &  BURDICK  filed  a  written  argument. 

The  court  had  no  power  to  make  the  order  of  March  6, 
1868,  setting  aside  the  judgment,  which  the  court  declared 
by  the  order  itself  to  be  regular  in  every  respect,  unless 
upon  the  defendants  filing  an  affidavit  of  merits.  Quhiti  v. 
Oase,  2  Hilton,  467;  Excise  Commissioners  v.  Hollister, 
id.  f»88;  Ellis  v.  Jones,  6  How.  Pr.  296;  Acts  Montana, 
1867,  147,  §  71  ;  Macomber  v.  U<n/or,  17  Abb.  87.  In  addi- 
tion to  an  affidavit  of  merits,  defendants  should  show  that 


60  BROWN  v.  G.  &  S.  GK  &  S.  M.  Co.      [Dec.  T., 

the  omission  to  answer  was  the  result  of  accident  or  mis- 
take, without  culpable  negligence. 

The  only  answer  of  defendants,  the  plea  of  bankruptcy, 
adjudged  in  a  foreign  court,  after  the  entry  of  this  judg- 
ment and  the  hling  of  defendants'  motion  to  set  the  same 
aside,  is  evidence  of  the  fact  that  defendants  had  no  defense 
upon  the  merits.  Courts  will  never  open  a  regular  judg- 
ment to  allow  an  inequitable  defense,  e.  g.,  the  statute  of 
limitations,  usury,  infancy,  coverture,  etc.  Bankruptcy  is 
of  the  same  nature  as  a  defense.  Bankrupt  act,  1867, 
§  14 ;  Allen  v.  Ackley,  4  How.  Pr.  5  ;  Hawes  v.  Hoyt,  11  id. 
454  ;  Toole  v.  Cook,  16  id.  142. 

The  orders  made  in  this  case,  previous  to  the  final  order, 
were  discretionary  with  the  court,  and  not  subject  to  review. 
Lord  v.  Vandenburgh,  15  How.  Pr.  363. 

The  proof  of  the  relation  of  Carter  to  the  defendant  is 
ample  and  sufficient  in  law.  Brevoort  v.  Mich.  C.  R.  R.  Co., 
5  How.  Pr.  183  ;  Bain  v.  Globe  Ins.  Co.,  9  id.  448.  In  cases 
where  there  is  a  doubt,  whether  the  party  served  is  a  man- 
aging agent,  the  burden  is  on  the  defendant  to  show  that  he 
was  not  a  managing  agent.  2  E.  D.  Smith,  519. 

The  defendant  pleads  no  surprise  or  mistake,  and  offers 
no  excuse  for  neglect.  The  court  having  held  the  service 
sufficient,  it  was  an  abuse  of  discretion  to  open  the  default. 
Bailey  v.  Taafe,  29  Cal.  422. 

CHUMASERO  &  CHADWICK,  for  respondent. 

The  return  of  the  officer  does  not  show  that  the  summons 
was  served  on  the  defendant,  or  any  one  authorized  to  accept 
service.  (This  suit  was  brought  before  the  passage  of  the 
California  Practice  Act  of  December  23,  1867.)  Acts  1865, 
48,  §§29-34. 

The  clerk  had  no  power  to  enter  judgment  by  default. 
This  was  an  action  to  foreclose  a  mechanic's  lien,  and 
required  a  special  decree  and  j  udgment  for  the  relief  prayed 
in  the  complaint,  and  a  special  order  for  the  sale  of  the 
property.  Acts  1867,  162,  §150  ;  Mechanic's  Lieu  Law,  Acts 
1865,  336,  §  18.  There  was  only  a  waiver  of  the  service  of 


1868.]  BROWN  t>.  G.  &  S.  G.  &  S.  M.  Co.  tfl 

the  summons,  and  an  indorsement  on  the  complaint  of  the 
appearance  of  Carter,  as  attorney  in  fact,  not  as  attorney  at 
law.  There  was  no  proof  by  affidavit  of  such  acknowledg- 
ment as  is  required  by  Acts  1865,  50,  sec.  34.  Alderson  v. 
Bell,  9  Cal.  320  ;  Acts  1867,  140,  §  29. 

In  order  to  render  judgment  or  other  judicial  proceedings 
valid,  it  is  indispensable  that  the  court  have  jurisdiction  of 
the  person,  subject-matter  and  process.  Unless  process  be 
executed  as  the  law  requires,  the  court  acquires  no  jurisdic- 
tion. Reynolds  v.  Orvis,  7  Cow.  269 ;  Oallatain  v.  Oun- 
mngliam,  8  id.  361.  In  case  of  want  of  jurisdiction  over 
the  person  or  subject-matter,  the  judgment  is  a  nullity. 
Norton  v.  Auchmoody,  7  Wend.  200  ;  Norman  v.  Wells,  17 
id.  145  ;  People  v.  Rensselaer  &  Saratoga  R.  R.  Co.,  15  id. 
121  ;  1  Scam.  488  ;  3  id.  107. 

In  case  of  void  judgment,  no  affidavit  of  merits  is  required. 

KNOWLES,  J.  This  was  an  action  against  the  above- 
named  respondents,  a  corporation  organized  under  the  laws 
of  the  State  of  Pennsylvania  to  carry  on  the  business  of 
mining  in  this  Territory,  to  foreclose  a  mechanic's  lien. 

The  sheriff  who  served  the  summons  made  the  following 
return  of  service  thereof: 

"I  served  the  within  summons  by  reading  the  same  to 
Rodman  Carter,  and  delivering  to  him  a  copy  thereof;  also 
delivered  to  him  a  copy  of  complaint.  All  done  in  Edger- 
ton  county,  M.  T.,  December  9,  1867." 

On  the  7th  day  of  January,  1868,  the  appellant  claimed 
of  the  clerk  of  the  district  court  a  default  against  the 
respondent,  which  was  duly  entered.  On  the  same  day, 
at  the  request  of  appellant,  the  clerk  entered  up  a  judg- 
ment against  respondent  for  the  amount  claimed  in  the 
complaint,  and  an  order  of  sale  of  the  described  premises. 
The  defendant,  within  two  days  thereafter,  filed  his  motion 
to  have  the  judgment  vacated  and  the  default  set  aside,  for 
the  reason,  among  others,  that  the  service  of  summons  was 
lefective. 

The  court  held,  on  the  hearing  of  this  motion    that  th* 


32  BROWN  /?.  G.  &  S.  G.  &  S.  M.  Co.        [Dec.  T, 

proceedings  were  defective,  but  gave  the  appellant  one  week 
in  which  to  file  affidavits,  showing  that  Rodman  Carter  was 
a  general  managing  agent  of  the  said  corporation,  the 
respondent.  Affidavits  were  filed,  which  the  court  held 
were  sufficient,  and  it  was  ordered  that  the  judgment  should 
stand  as  the  judgment  of  the  court.  On  the  llth  day  of 
February  the  judge  reversed  this  order,  on  the  ground  that 
it  was  made  out  of  term  time,  and  that  on  the  adjournment 
of  the  court  all  causes  and  motions  had  been  continued  for 
the  term.  On  the  6th  day  of  March  following  the  court 
rendered  a  decision,  holding  the  service  good,  but,  at  the  same 
time,  setting  aside  the  judgment  and  default,  and  giving  the 
respondent  time  to  file  his  answer. 

From  this  order  the  appellants  appeal  to  this  court. 

If  there  was  a  good  service  of  summons  upon  respondent, 
and  a  default  had  been  regularly  entered,  and  a  judgment 
thereon,  there  is  no  doubt  that  it  was  improper  practice  to 
allow  the  respondent,  without  any  showing  of  excusable 
neglect  or  inadvertence,  to  have  the  judgment  vacated  and 
the  default  set  aside,  and  leave  to  file  an  answer  to  the  com- 
plaint. Does  the  record  present  such  a  case?  No  matter 
what  the  reasons  which  induced  the  court  to  sustain  the 
motion  may  have  been,  still,  if  there  were  legal  grounds 
presented  to  him  which  warranted  his  ruling,  it  is  the  dut}~ 
of  this  court  to  sustain  it. 

It  is  not  contended  that  the  return  of  the  sheriff  shows 
sufficient  service  of  summons  to  warrant  the  judgment.  The 
appellant,  however,  sought  to  remedy  this  defect,  by  filing 
affidavits  of  third  persons  to  show  that  Carter  was  a  manag- 
ing agent.  When  an  officer  serves  a  summons  the  usual 
way,  and  \vc  are  inclined  to  sa}T  the  only  way  of  proving 
that  service  is  either  by  the  return  of  the  officer  himself  or 
the  written  acknowledgment  of  the  party  served.  The 
attempt  to  amend  service  of  summons  by  the  affidavits  of 
persons  who  did  not  make  the  service,  is  certainly  doubtful 
practice,  but  when  these  parties  do  not  pretend  to  have  been 
present  when  service  was  made,  or  to  know  that  the.  sheriff 
did  make  serviYe  on  th*j  particular  individual  desmb*--^.  wy 


3868.]  BROWN  v.  G.  &  S.  GK  &  S.  M.  Co.  6S 

are  sure  it  is  improper  practice.  Not  one  of  the  persons 
making  affidavits  pretend  to  know  that  the  Carter  they  are 
deposing  concerning  is  the  one  upon  whom  the  sheriff  made 
service.  There  is  another  point  connected  with  these  affi- 
davits which  strikes  us  forcibly.  One  sets  forth  what  Carter 
told  him  was  the  position  in  the  company  which  he  held, 
which  is  certainly  hearsay  testimony.  Another  deposes  con- 
cerning the  contents  of  a  written  power  of  attorney  which 
he  says  Carter  told  him  was  sent  him  by  telegraph.  It  is 
well,  perhaps,  he  does  not  depose  concerning  the  signatures 
to  this  power  of  attorney.  The  third  affidavit  sets  forth 
certain  transactions  in  which  Carter  was  engaged  as  the  agent 
of  the  company.  This,  however,  so  far  as  it  is  not  hearsay, 
does  not  show  that  his  agency  pertained  to  all  the  affairs 
of  the  company.  If  it  did  not,  it  has  been  held  that  he  was 
not  what  is  denominated  a  general  managing  agent,  and 
service  upon  him  would  not  have  been  sufficient.  Such 
affidavits,  we  are  of  the  opinion,  are  insufficient  to  amend  a 
return  of  a  sheriff  of  service  of  summons  if  such  practice  be 
proper. 

Where  the  service  of  a  summons  is  defective,  it  is  not 
error  for  the  court  to  sustain  a  motion  to  vacate  a  judgment 
and  set  aside  a  default,  and  allow  the  defendant  to  make 
answer  to  the  merits  of  the  complaint. 

In  accordance  ivith  these  views  the  order  of  the  court 
below  is  affirmed,  and  the  cause  remanded  for  further  pro- 
ceedings. 

Affirmed. 

WARREN.  C.  J.,  concurred. 


64  LAMB  v.  G.  &  S.  G.  &  S.  M.  Co.         [Dec.  T., 

LAMB,  appellant,  v.  GASTON  AND  SIMPSON  GOLD  AND  SIL- 
VER MINING  COMPANY,  respondent. 

ATTORNEY  IN  FACT  —  authority  for  appearance.  The  attorney  in  fact  of  a  cor- 
poration, who  is  not  its  general  managing  agent,  cannot  appear  in  an  action 
against  it  without  special  authority. 

PRACTICE  —  default  —  how  set  aside.  A  default  should  not  be  set  aside,  if  the 
service  has  been  regular,  without  affidavits  of  excusable  neglect  or  inad- 
vertence, and  also  of  merits. 

CASE  AFFIRMED.  The  case  of  Broicn  v.  Gaston  and  Simpson  Gold  and  Silver 
Minim/  Company,  ante,  p.  57,  affirmed. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  facts  in  this  case  are  substantially  the  same  as  those 
in  the  case  of  Brown  v.  Gaston  and  Simpson  Gold  and 
Silver  Mining  Company,  ante,  p.  57.  The  pleadings, 
motions  and  orders  of  the  court,  MUNSON,  J.,  are  the  same. 

This  case  was  argued  at  the  same  time  with  that  of  Brown 
against  same  defendant,  and  the  arguments  are  given  in  the 
report  of  that  case. 

SHOBER  &  LOWRY  and  H.  N.  BLAKE,  for  appellant. 
WILLIAMS  &  BURDICK  filed  a  written  argument. 

CHUMASERO  &  CHADWICK,  for  respondent. 

KNOWLES,  J.  The  facts  presented  in  this  case  are  in  the 
main  the  same  as  those  of  Brown  v.  Gaston  and  Simpson 
Gold  and  Silver  Mining  Company.  The  only  difference  is 
the  manner  in  which  the  respondent  was  brought  into  court. 
In  this  case  R.  Carter,  who,  it  is  claimed,  was  the  managing 
agent  of  the  respondent,  a  mining  corporation,  made  a 
memorandum  on  the  complaint,  which  it  is  claimed  was  a 
waiver  of  service  of  summons,  in  the  following  words  : 

"  I  hereby  waive  service  of  summons  in  this  action,  and 
hereby  appear  as  attorney  in  fact  of  said  company. 

"HELENA,  Nov.  25,  1867. 

"R.  CARTER." 

The  affidavits  and  brief  filed  in  this  case,  and  the  proceed- 
ings subsequent  to  the  signing  of  this  memoranda,  are  the 


1868. j  LAMB  v.  G.  &  S.  G.  &  S.  M.  Co.  <56 

same  as  ill  the  aforesaid  case  of  Brown  against  this  respond 
eiit.  The  court  below,  it  would  appear,  held  that  this 
appearance  was  insufficient,  unless  it  appeared  that  Carter 
had  authority  to  appear  in  this  cause  for  respondent.  To 
establish  this  fact  the  appellants  tiled  affidavits  to  show  that 
he  was  a  general  managing  agent  of  the  respondent. 

The  affidavit  of  Burdick  establishes  the  fact  of  the  genuine- 
ness of  Carter's  signature  to  the  memoranda.  But  as  far  as 
the  authority  of  Carter  to  appear  in  the  cause  is  concerned, 
he  only  recites  what  Carter  told  him.  While  the  evidence 
of  Carter  would  be  sufficient  to  establish  his  agency,  what 
he  said  is  incompetent.  It  is  hearsay  testimony.  The  affi- 
davit of  Cowan  is  mostly  hearsay  testimony.  So  for  as  it  is 
not,  it  shows  only  that  Carter  acted  for  the  company  in 
settling  his  account.  This  would  not  be  sufficient  to  warrant 
him  in  appearing  in  an  action. 

The  affidavit  of  King  recites  that  he  had  seen  a  power  of 
attorney  to  Carter  from  respondent,  which  had  been  sent 
him  by  telegraph.  Waiving  all  objections  to  the  proving 
of  a  power  of  attorney  sent  by  telegraph,  he  does  not  state 
that  there  was  in  this  any  express  power  to  appear  in  an 
action  against  the  respondent  or  any  one  else.  Nor  does  it 
show  that  he  was  a  general  managing  agent.  Carter  himseli 
does  not,  in  the  memoranda  he  signed,  describe  himself  as  a 
managing  agent,  but  only  as  an  attorney  in  fact.  An 
attorney  in  fact,  unless  he  has  express  authority  to  appear 
in  an  action,  cannot  do  so.  The  authority  for  an  attorney 
in  fact  to  appear  in  a  suit  must  appear  within  the  term  of  the 
grant  of  power  to  him,  unless  he  is  a  general  "managing  agent 
of  a  corporation,  and  then  perhaps  it  would  be  presumed. 
The  managing  agent  of  a  corporation,  however,  to  have  this 
authority,  must  be  one  whose  powers  extend  to  the  whole 
business  of  the  company,  and  upon  whom  service  of  sum- 
mons could  be  made  in  accordance  with  the  provisions  of  the 
statute.  Believing  that  there  is  not  sufficient  evidence  to 
establish  the  fact  that  Cartel-  was  a  general  managing  agent 
of  the  Gaston  and  Simpson  Gold  and  Silver  Mining  Com- 
pany ;  and  waiving  all  objections  to  the  power  of  attorney 
VOL.  L—  9. 


66  GRIFFITH  v.  HERSHFIELD.  [Dec.  T., 

which  he  received  by  telegraph,  it  not  appearing  th<it  he  had 
express  authority  to  appear  in  suits  against  the  respondent, 
we  find  no  error  in  the  ruling  of  the  court  below.  However, 
if  we  believe  that  the  affidavits  filed  did  establish  these  facts, 
as  the  court  below  seems  to,  we  would  hold  it  improper 
practice  to  allow  the  respondent  to  have  the  default  set 
aside,  and  be  permitted  to  come  in  and  answer  without  an 
affidavit  of  excusable  neglect  or  inadvertence  and  merits. 

We  hold,  as  in  the  case  of  Brown  v.  Oaston  and  Simpson 
Gold  and  Silver  Mining  Corripany^  that  in  a  cause  where 
the  manner  in  which  a  defendant  is  brought  into  court  is 
defective,  it  is  not  error  to  allow  him  to  come  in  and  answer 
without  any  affidavit  of  excusable  neglect  or  inadvertence 
and  merits. 

In  accordance  with  these  views  the  order  of  the  court 
below  is  affirmed,  and  the  cause  remanded  for  further 

proceedings. 

Affirmed. 
WARREN,  C.  J.,  concurred. 


GRIFFITH  et  al.,  respondents,  v.  HERSHFIELD  etal.,  appel- 
lants. 

STAMPS  ON  GOLD  DUST  CONTRACTS.  A  writing  stating  that  a  certain  quantity 
of  gold  dust  is  due,  without  specifying  its  value,  and  a  mortgage  executed 
to  secure  the  delivery  of  the  same,  are  not  "instruments  for  the  pay- 
ment of  money,"  under  the  act  of  congress  requiring  stamps  to  be  affixed 
to  them. 

COUNTY  RECORDER  —  authority — stamps.  A  county  recorder  is  not  authorized 
to  determine  the  value  of  gold  dust  described  in  a  mortgage  which  is  pre- 
sented to  him  for  record,  and  cannot  know  what  stamp  should  be  affixed 
thereto  before  he  records  it. 

STAMPS  ox  MORTGAGE  AND  NOTE.  It  is  legal  to  affix  stamps  to  a  note,  or  the 
mortgage  executed  to  secure  its  payment,  or  both,  if  the  amount  on  both 
ia  sufficient. 

PBACTICE — judgment  on  reserved  verdict.  It  is  not  error  to  enter  judgment 
upon  a  verdict  which  has  been  reserved  for  consideration,  on  the  motion 
of  complaining  party. 

INTEREST  ON  JUDGMENTS.  Judgments  bear  interest  in  this  Territory  at  th^ 
rate  of  ten  per  centum  per  annum. 


1868.]  GRIFFITH  ».  HERSHFIELD.  67 

Appeal  from  tfie  Third  District,  Lewis  and  Qtarke  County. 

GRIFFITH  and  Thompson  commenced  this  action  to  fore- 
close a  mortgage  executed  by  Hermann  &  Star,  to  secure 
the  payment  of  a  number  of  ounces  of  gold  dust.  The 
suit  was  brought  in  the  district  court  in  Jefferson  county, 
on  June  18,  1867,  which  was  then  attached  to  Edgerton 
oounty  for  judicial  purposes.  The  name  of  Edgerton  county 
was  changed  to  Lewis  and  Clarke  county  by  an  act  of  the 
legislature,  approved  .December  20,  1867.  Hermann  &  Star 
made  the  following  instrument,  which  formed  a  part  of  the 
complaint : 

"  VIRGINIA  CITY,  M.  T.,  October  17,  1866. 
Due  Griffith  &  Thompson,  or  order,  for  balance  due  for 
building  quartz  mill  as  per  settlement  this  date,  the  amount 
of  ninety-three  and  one-half  ounces  (93£  oz.)  in  good  mer- 
chantable gold  dust,  and  the  amount  of  four  and  two-thirds 
ounces  (4f  oz.)  per  montli  additional,  in  merchantable  gold 
dust,  from  date  until  paid. 

HERMANN  &  STAR." 

(  $1  U.  8.  Rev.  Stamp,  {. 
I  canceled.  ( 

<)ii  the  same  date  Hermann  <fc  Star  executed  a  mortgage 
<>ii  their  quartz  mill,  to  secure  the  payment  of  the  gold  dust 
contract.  The  mill  was  situated  in  Jefferson  county.  The 
mortgage  was  acknowledged  in  Madison  county  on  Novem- 
ber 8,  1866.  before  a  notary  public,  and  filed  for  record  with 
the  county  recorder  of  Jefferson  county  on  November  10, 
1866.  The  mortgage  was  stamped  with  an  internal  revenue 
stamp  of  the  United  States  of  the  value  of  two  dollars. 

Hermann  &  Star  answered  on  July  1,  1867,  and  Hersh- 
tield  and  Hanauer,  on  the  same  day,  hied  their  petition  to 
intervene  in  the  action,  and  stated  the  following  facts :  That 
Hermann  &  Star,  on  November  8,  1866,  executed  to  Hersh- 
tield  and  Hanauer  a  deed  to  the  property  described  in  the 
mortgage  to  Griffith  and  Thompson  :  that  this  deed  was 
recorded  in  the  county  recorder's  office  in  .Jefferson  county, 
on  November  14,  1 8(5(5:  and  thai  it  was  executed  for  a  val- 
uable consideration,  to  secure  the  pavment  of  money  due 


68  GRIFFITH  t>.  HERSHFIELD.  [Dec.  T., 

from  Hermann  &  Star  to  Hershfield  and  Hanauer.  They 
prayed  to  be  made  parties  to  the  action,  to  contest  the  claim 
of  Griffith  and  Thompson  ;  that  their  deed  be  declared  a 
prior  incumbrance  to  the  plaintiffs'  mortgage,  and  that  the 
property  be  sold  to  satisfy  their  demand  against  Hermann 
&  Star,  being  §16,940  and  interest. 

The  plaintiffs  filed  their  answer  to  the  petition  of  the 
intervenors,  and  the  cause  was  tried  in  April,  1868,  in  the 
district  court,  MUNSON",  J.  On  the  trial  the  intervenors 
objected  to  the  introduction  of  the  mortgage  from  Hermann 
&  Star  to  the  plaintiffs,  and  also  a  certified  copy  of  the 
same,  which  plaintiffs  offered  in  evidence,  on  the  ground 
that  the  mortgage  was  not  legally  stamped,  and  that  the 
evidence  that  it  had  been  recorded  was  insufficient.  The 
objection  was  overruled,  and  the  intervenors  excepted. 

The  jury  returned  a  general  verdict  for  the  plaintiffs,  and. 
among  other  special  findings,  that  the  value  of  the  gold 
dust,  mentioned  in  the  instrument  dated  October  17,  1866, 
was  $2,103.75. 

On  motion  of  the  counsel  for  the  intervenors,  the  entry 
of  judgment  upon  the  verdict  and  findings  of  the  jury  was 
stayed,  until  they  could  be  heard  thereon.  After  the  argu- 
ment of  counsel  the  court  rendered  its  decree  in  favor  of 
plaintiffs,  on  May  18,  1868,  and  the  intervenors  appealed. 
The  amount  of  the  judgment  was  $3,993.75,  with  interest 
thereon  from  May  18,  1868,  at  the  rate  of  two  and  one-half 
per  cent  per  month. 

CHUMASERO  &  CHADWICK,  for  appellants. 

The  mortgage  should  have  been  excluded,  because  it  was 
not  sufficiently  stamped.  The  complaint  showed  that  the 
gold  dust  was  of  the  value  of  $2,770.60.  The  mortgage 
should  have  had  upon  it  a  stamp  of  $3.  It  actually  had  a 
stamp  of  only  $2.  Int.  Rev.  Laws  and  Regulations,  Series 
3,  No.  10,  May  10,  1867,  p.  12. 

The  mortgage  was  not  made  until  the  day  before  its  exe- 
cution, on  November  8,  1866,  although  it  has  the  same  date 
as  the  note.  The  note  was  not  sufficiently  stamped  at  the 


1868.]  GBIFFITH  v.  HEBSHFIELD.  69 

time  it  was  made.  The  law  does  not  allow  the  stamps  to 
be  divided ;  one  of  the  instruments  must  be  sufficiently 
stamped.  If  such  a  division  is  allowed,  it  can  only  be  done 
when  the  instruments  were  executed  simultaneously.  A 
party  must  apply  to  the  collector  to  stamp  instruments 
insufficiently  stamped.  Int.  Rev.  Laws  1867,  §  158.  No 
rights  acquired  prior  to  such  re-starnping  can  be  affected 
thereby.  The  mortgage,  executed  twenty-two  days  after 
the  note  was  given,  ought  to  have  had  the  full  amount  of 
the  stamp  upon  it.  The  mortgage  could  not  be  connected 
with  the  note,  so  as  to  avoid  the  consequences  of  the  insuffi- 
cient stamping.  A  stamp  once  canceled  cannot  be  used  to 
give  vitality  to  an  instrument  subsequently  executed. 

The  amount  secured  was  uncertain ;  but  the  complaint 
and  testimony  show  that  the  parties  to  the  instrument  well 
knew  the  amount  intended  to  be  secured,  $2,770.60.  The 
jury  found  the  value  of  the  gold  dust  to  be  $2,103.75.  The 
plaintiffs  knew  that  the  amount  so  secured  was  over  $2,000, 
and  this  value  never  decreased. 

The  mortgage  was  not  entitled  to  be  recorded.  The  mort- 
gage was  not  properly  stamped,  and  did  not  show  that  the 
proper  amount  had  been  affixed  to  any  instrument.  Such 
an  instrument  could  not  be  recorded  under  the  Internal 
Revenue  Law,  §§  152  and  163.  The  mortgage,  if  afterward 
stamped,  could  not  affect  prior  rights.  Id.,  §  158.  The 
record  was  absolutely  void,  and  could  not  be  used  in  evi- 
dence. 

The  recorder  had  no  right  to  record  the  mortgage.  An 
instrument  placed  on  record,  without  authority  of  law,  can- 
not be  treated  as  notice  to  subsequent  purchasers  or  incum- 
brancers. 

The  court  erred  in  allowing  interest  upon  the  judgment 
at  the  rate  of  two  and  one- half  per  cent  per  month.  The 
law  fixes  the  rate  of  interest  on  judgments  at  ten  per  cent 
per  annum.  Acts  1865,  535,  §  2.  A  j  udgment  carries  such 
rate  of  interest  as  is  legal  at  the  date  of  the  judgment, 
regardless  of  the  rate  recoverable  on  the  contract.  Verner 


70  GRIFFITH  v.  HERSHFIELD.  [Dec.  T., 

v.  JfttyJies,  6  Halst.  91  ;  Byrd  v.  Gosquet,  1  Hemp.  261  ; 
Ecans  v.  White,  id.  296. 

The  decree  is  void.  It  was  made  in  vacation,  and  should 
have  been  made  before  the  close  of  the  term  at  which  the 
case  was  tried.  The  court  had  no  right  to  order  the  judg- 
ment  to  be  entered  in  vacation.  Hogeboom  v.  Genet,  Q 
Johns.  325  ;  Sheppard  v.  Wilson,  1  Morris,  448  ;  Goddard 
\.  Coffin,  Davies,  381. 

There  was  no  order  of  the  court,  after  the  trial,  reserving 
the  cause  for  further  consideration.  The  clerk  should  have 
made  an  entry  of  such  order.  Nothing  of  this  kind  was 
done.  Acts  1867,  167,  §  178. 

\VORD  &  SPRATT  and  WOOLFOLK  &  TOOLE,  for  re- 
spondents. 

The  jury  find  that  respondents'  mortgage  was  first  re- 
corded in  the  proper  county.  It  is,  therefore,  entitled  to 
precedence  over  that  of  the  interveriors.  Acts  1865,  484, 
§><  24  and  25  ;  4  Kent's  Com.  191  ;  4  Abb.  Dig.  687,  §§  23, 
75.  688.  Each  mortgage  was  executed  and  received  without 
notice  of  the  other. 

The  intervenors'  mortgage  was  executed  and  recorded  as 
an  absolute  deed.  It  does  not  operate  as  constructive  notice 
of  a  mortgage,  and  is  regarded  as  an  unrecorded  mortgage. 
4  Abb.  Dig.  686,  §  1  ;  688,  §§  31,  32,  33  ;  James  v.  Morey, 
-2  Cow.  246  ;  Dey  v.  Dunham,  2  Johns.  Ch.  190. 

Respondents'  mortgage  was  made  and  executed  to  secure 
a  certain  amount  of  gold  dust.  The  revenue  laws  apply 
only  to  mortgages  securing  a  certain  sum  of  money,  while 
this  mortgage  was  to  secure  an  indefinite  amount  of  gold 
dust  as  to  value.  The  note  and  mortgage  were  both 
stamped,  and.  in  law,  they  are  regarded  as  one  instrument. 
The  stamps,  amounting  to  $3.  were  more  than  sufficient  to 
rover  the  value  of  the  gold  dust  as  found  by  the  jury, 
r.  S.  Int.  Rev.  Laws;  decision  of  Commissioner  Rollins 
of  September  4,  1868. 

The  records,  which  are  the  best  and  only  evidence,  show 
that  there  was  no  adjournment  of  the  term  at  which  th«' 


1868.]  GRIFFITH  v.  HEUSHFIELD.  71 

decree  was  rendered.  1  Greenl.  Ev.,  §  513.  If  the  decree 
was  signed  in  vacation,  the  findings  of  the  jury  were  in 
court  and  during  the  terra,  and  it  is  the  duty  of  the  supreme 
court  to  enter  such  judgment  on  the  findings  of  the  jury  as 
is  right.  Love  v.  Shartzer,  31  Cal.  488. 

WARREN,  0.  J.  The  chief  question  raised  upon  this 
record  is  the  sufficiency  of  the  revenue  stamps  affixed  to  the 
instruments  executed  to  appellees  by  Hermann  &  Star,  de- 
fendants below.  The  internal  revenue  act,  in  force  at  the 
time  they  were  executed,  imposed  an  ad  valorem  duty  upon 
specified  instruments  in  writing  for  payment  of  money,  or 
upon  "other  written  or  printed  evidence  of  an  amount  of 
money  to  be  paid  on  demand,  or  at  a  time  designated ; 
and,  also,  upon  mortgages  of  real  or  personal  property  made 
as  security  for  the  payment  of  any  "definite  and  certain 
sum  of  money."  It  also  provides  that  it  shall  not  be  lawful 
to  record  any  instrument  required  by  law  to  be  stamped, 
unless  a  stamp  or  stamps  of  the  proper  amount  shall  have 
been  affixed,  and  that  such  record,  if  made,  shall  be  void, 
and  shall  not  be  used  as  evidence. 

The  instrument  in  question  in  this  case  is  not  for  the  pay- 
ment of  money.  It  is  "evidence"  of  an  agreement  to  pay 
appellees  a  certain  number  of  ounces  of  gold  dust,  on 
demand,  and  the  mortgage  was  executed  to  secure  the  same. 
The  former  instrument  was  stamped  to  the  amount  of  $1, 
and  the  latter  to  the  amount  of  $2.  The  appellants  contend 
that  they  were  insufficiently  stamped,  and  that  the  record 
of  the  mortgage,  though  made  prior  to  that  of  the  convey- 
ance or  mortgage  to  them,  was  void,  and  that  they  were  not 
thereby  legally  charged  with  notice  of  its  existence.  It  is 
assigned  that  the  court  erred  in  admitting  the  instruments, 
and  the  certificate  of  record  of  the  mortgage,  in  evidence 
upon  the  trial  below. 

We  are  of  opinion  that  the  instruments  in  question  are 
not  embraced  in  the  schedule  embodied  in  the  revenue  act, 
as  subject  to  the  ad  valorem  duties  thereby  imposed  upon 
similar  instruments  for  the  payment  and  securing  of  money, 


72  GRIFFITH  v.  HEBSHFIELD.  [Dec.  T., 

and  that  they  were  valid,  and  that  proof  of  the  record  of  the 
mortgage  was  properly  admitted.  The  contract  or  agree- 
ment of  the  parties  was  for  the  payment  or  delivery  of 
certain  property  ;  and  the  mortgage  was  executed  to  secure 
the  performance  of  the  agreement,  and  they  cannot  be 
regarded  as  being  for  the  payment  of  money. 

Had  the  money  value  of  the  gold  dust  been  expressed  in 
the  instrument,  or  could  it  have  been  ascertained  from  its 
terms,  the  case  would  have  been  different. 

It  was  the  duty  of  the  recorder,  under  the  territorial  law, 
to  record  the  mortgage,  and  the  record,  when  made,  was 
notice  to  all.  Under  the  act  of  congress  he  had  no  legal 
authority  to  determine  the  value  of  the  property  embraced 
in  the  mortgage,  and  the  payment  of  which  it  was  made  to 
secure ;  and  no  means  were  furnished  him  by  which  to 
arrive  at  the  amount  of  duty  to  which  the  instrument  was 
subject.  Had  congress  designed  to  include  such  instruments 
in  the  provision  relating  to  recording,  power  would  have 
been  conferred  to  ascertain  by  some  means  the  value,  in 
order  to  determine  whether  the  amount  of  ad  valorem  duty 
paid,  as  denoted  by  the  stamps,  entitled  it  to  record  or  not. 

Admitting,  however,  that  while  the  instrument  secured  by 
the  mortgage  was  only  subject  to  duty  as  an  agreement  or 
contract,  the  mortgage  was  subject  to  the  ad  valorem  duty, 
the  amount  to  which  it  was  subject  would  depend  upon  the 
value  of  the  property  secured  by  it  at  the  time  of  the  execu- 
tion of  the  mortgage,  and  not  upon  its  subsequent  value,  or 
with  the  accrued  interest. 

The  agreement,  or  memorandum,  and  the  mortgage,  both 
bear  date  October  17,  1866,  and,  in  their  special  finding,  the 
jury  found  that  to  be  the  true  date.  There  is  no  proof,  and 
no  presumption  of  law,  that  the  value  of  the  gold  dust,  at 
that  time,  exceeded  the  amount  indicated  by  the  stamps. 

If,  however,  as  claimed  by  appellants,  the  mortgage  was 
not  executed  until  November  8,  1866,  still  the  value  of  the 
gold  at  that  time,  as  found  by  the  jury,  was  $2,103.7o,  and 
the  two  instruments  constituting  but  one  transaction,  the 
amount  of  duty  upon  them  denoted  by  the  stamps  was 


1868.]  CONNER  v.  McPnEE.  73 

sufficient.  The  object  of  the  act  is  to  derive  revenue  ;  and 
the  amount  of  the  stamps  being  sufficient,  it  is  not  material 
to  which  they  were  affixed.  The  record  shows  that  after 
rendition  of  the  verdict,  the  court,  on  appellants'  motion, 
ordered  the  case  to  be  reserved  for  further  consideration ; 
and,  after  argument,  entered  judgment  in  conformity  to  the 
verdict.  In  this  there  was  no  error. 

The  court  below  erred  in  allowing  interest  upon  the  judg- 
ment at  a  greater  rate  than  ten  per  cent  per  annum  ;  and  the 
judgment  id  hereby  modified  so  as  to  conform  to  this 
opinion,  and  affirmed  as  modified. 

Modified. 

KNOWLES,  J.,  concurred. 

This  judgment  was  reversed  at  the  August  term,  1872. 


CONNER,  appellants,  v.  McPnEE,  respondent. 

PRACTICE  —  nonsuit  —  plaintiff's  motion  to  set  aside.  A  plaintiff  can  move  to 
set  aside  a  nonsuit,  which  has  been  entered  with  his  consent,  after  it  wai 
evident  that  he  could  not  recover  on  account  of  alleged  error  in  the  rulings 
of  the  court. 

QCAKTZ-CLAm — record  —  number  of  feet.  The  record  of  a  quartz-claim,  which 
does  not  specify  the  number  of  feet  claimed  by  the  pre-emptor,  is  admis- 
sible in  evidence  in  this  case.  The  number  of  feet  need  not  be  specilit'd  in 
the  record  of  the  claim. 

PRACTICE  —  review  —  matter*  not  in  record.  This  court  cannot  review  matters 
which  are  not  presented  in  the  record  of  the  case. 

Appeal  from  the  First  District,  Madison  County. 

Tins  action  was  commenced  by  Connor  and  O'Neal  in 
September,  1865,  in  the  district  court.  The  complaint 
alleged  that  Conner,  in  April,  1804.  located  and  staked 
claim  numbered  one,  south-west  from  the  discovery  claim 
on  the  Ore  Cache  quartz  lode  in  Summit  district.  Madison 
county  ;  that  it  comprised  one  hundred  and  t wen ty-five 
feet;  that  twenty-five  feet  was  recorded  by  mistake  as  a 
VOL.  I.  — 10. 


74  CONNER  v.  MCPHEE.  [Dec  TM 

part  of  the  discovery  claim  by  James  Miniss,  who  conveyed 
the  same  to  Conner  by  deed  recorded  May  10,  1864 ;  that 
Conner,  on  October  19, 1864,  conveyed  to  O'Neal  by  deed  one 
undivided  half  of  said  one  hundred  and  twenty-five  feet ; 
that  Conner  and  O'Neal  had  peaceable  possession  of  this 
property  until  November  9,  1864,  and  performed  thereon 
the  work  required  by  law  ;  that  defendant,  McPhee,  wrong- 
fully entered  upon  the  same  on  November  9, 1864,  and  filed 
a  pre-emption  claim  to  one  hundred  feet  of  it ;  and  that 
McPhee  was  mining  the  ground. 

The  defendant  answered  on  December  4,  1865,  and  denied 
the  material  allegations  of  the  complaint.  He  also  set  forth 
that  claim  numbered  one,  south-west  from  discovery  claim  on 
the  Ore  Cache  lode,  was  located,  pre-empted  and  recorded  as 
only  one  hundred  feet  in  length  ;  that  Conner  pretended  to 
pre-empt  this  claim,  but  did  not  stake  it  and  compty  with 
the  law  in  other  respects  ;  that  said  claim  was  never  worked 
and  was  vacant  until  McPhee  located  and  pre-empted  it  on 
November  9,  1864 ;  and  that  defendant  worked  and  pos- 
sessed said  claim  until  August  17,  1865,  when  he  was  re- 
strained by  an  order  of  court. 

The  plaintiffs  filed  their  replication  and  denied  the  new 
matter  contained  in  the  answer. 

The  cause  was  tried  in  September,  1867,  in  the  district 
court,  HOSMER,  J.,  to  whose  rulings  upon  the  admission  of 
certain  evidence  the  plaintiffs  excepted,  and  consented  to 
the  entry  of  a  nonsuit.  The  plaintiffs  then  moved  to  set 
aside  the  nonsuit  and  for  a  new  trial  on  account  of  the 
erroneous  rulings  of  the  court.  This  motion  was  denied 
and  judgment  then  rendered  against  plaintiffs,  who  ap- 
pealed. 

The  evidence  referred   to,  which  was  contained  in   the 
exception  considered  by  the  court,  appears  in  the  opinion 
The  other  exceptions  that  were  taken  upon  the  trial  were 
not  passed  upon  and  are  not  embodied  in  the  report  of  the 
case. 


1868.]  CONNKIS  r.  McPiiEK.  76 

WORD  &  SPBATT  and  DAVIS  &  THOROUGHMAN,  for  ap- 
pellants. 

The  court  erred  in  refusing  to  submit  to  the  jury  the  issues 
framed  by  appellants  relating  to  the  circumstances  under 
which  the  appellants  and  respondent  acquired  the  rights 
they  claimed.  Parol  evidence  is  always  admissible  to  prove 
such  facts.  Stanley  v.  Green,  12  Cal.  162.  The  court  also 
erred  in  submitting  to  the  jury  issues  of  law. 

The  first  issue  submitted  to  the  jury  was  "  the  number  of 
feet  contained  in  claim  number  one,  south-west  from  discov- 
ery." After  submitting  the  same  as  a  question  of  fact,  the 
court  refused  to  allow  appellants  to  introduce  any  testimony 
showing  the  number  of  feet  staked  and  contained  in  said 
claim,  because  the  law  fixed  the  number  of  feet.  If  it  was 
a  question  of  law,  the  court  erred  in  submitting  it  to  the 
jury.  Parol  evidence  is  competent  to  prove  the  number  of 
feet  in  the  claim  in  controversy.  1  Greenl.  Ev..  §§  288 
and  301. 

The  court  erred  in  refusing  to  allow  appellants  to  prove 
the  staking  of  the  claim.  1  Greenl.  Ev.,  §  94  ;  Idaho  Stats. 
o77.  The  court  erred  in  refusing  to  allow  appellants  to 
prove  that  they  had  done  the  $100  worth  of  work  on  the 
claim  within  six  months  after  it  was  recorded.  This  issue 
was  submitted  to  the  jury,  and  the  court  then  rejected  the 
testimony  of  appellants  tending  to  prove  that  fact. 

The  court  erred  in  refusing  to  allow  appellants  to  prove  the 
written  notices  placed  upon  the  stakes,  and  that  they  were 
plainly  to  be  seen  at  the  time  respondent  took  possession 
of  the  claim.  The  record  shows  that  the  claim  was  recorded 
on  May  10,  180-i.  The  answer  shows  t.har  respondent  took 
possession  of  the  same  on  November  9,  1804,  within  less  than 
six  months  from  the  time  it  was  recorded,  Under  the  laws 
of  Idaho  Territory,  then  in  force,  appellants  had  the  whole 
six  months  to  put  on  the  claim  the  a  mount  of  work  required 
by  the  statute.  The  time  thus  allowed  did  not  expire  until 
on  or  alter  "November  10,  18(5-1.  The  possession  by  respond- 
ents, before  the  expiration  of  the  six  months,  forcibly  as 
alleged,  is  a  sufficient  excuse  for  the  failure  of  appellants  to 


76  CONNER  v.  McPHEE.  [Dec  T., 

perform  the  work  required,  if  there  was  any  such  failure. 
Respondent  is  estopped  in  law  from  setting  up  any  alleged 
failure  as  a  defense. 

The  court  refused  to  allow  appellants  to  show  that  they 
had  complied  with  the  statute  and  thereby  forced  them  to  sub- 
mit to  a  nonsuit.  An  appeal  will  lie  from  a  nonsuit  taken 
under  the  circumstances  of  this  case.  Natoma  W.  &  M.  Co. 
v.  Qfarkin,  14  Gal.  549  ;  Sweet  v.  Lee,  42  Eng.  C.  L.  240. 

W.  F.  SANDERS  and  W.  M.  STAFFORD,  for  respondent. 

No  error  lies  from  a  voluntary  nonsuit.  Imley  v.  Beard, 
6  Gal.  666,  and  cases  cited  ;  Hilliard  on  New  Trials,  74 
and  497. 

The  court  below  excluded  nothing,  but  assumed  to  direct 
the  order  of  appellants'  proof.  There  was  no  error  in  this. 
The  fact  first  required  by  the  court  was  the  fact  on  which 
appellants'  claim  hinged.  A  certain  paper  had  been  placed 
on  the  district  records,  where  this  claim  was  situate,  by 
which  Conner  meant  to  pre-empt  one  hundred  feet.  The 
appellants  then  wanted  to  show  that  a  copy  of  this  same 
paper  was  recorded  in  Madison  county  records,  and  Connei 
then  meant  something  else,  i.  e.,  two  hundred  feet.  In  otiier 
words,  this  paper  got  up  to  secure  one  hundred  feet  to  Con- 
ner —  not  by  reason  of  any  change  in  it,  but  by  reason  of 
c;  ange  in  his  mind  —  secured  something  else,  and  more. 
Conner  claims  that  he  was  misled  into  recording  the  dis- 
covery claim  as  a  discovery  claim.  The  discovery  claim 
"was  to  be,  and  was,  one  hundred  feet  in  length,"  accord- 
ing to  the  complaint.  Claim  number  one  south-west  was 
also  to  be,  and  was  one  hundred  feet  in  length,  according 
to  the  complaint,  location,  agreement  of  Conner  and  Miniss, 
and  the  record.  The  south- west  twenty-live  feet  of  discov- 
ery, recorded  in  the  name  of  Miniss  by  mistake,  according 
to  Conner,  was  deeded  to  Conner.  Appellants  wish  to  aban- 
don these  facts,  and  substitute  therefor  intentions  and  hopes, 
and  brush  away  records,  customs  and  rights. 

It  is  difficult  to  tell  whether  this  is  an  action  of  eject- 
ment, or  an  equitable  proceeding  to  quiet  title.  It  is  both. 


1868.]  CONNER  v.  McPHEE.  71 

Appellants'  motion  for  a  change  of  venue  was  properly 
denied.  This  is  a  question  which  is  addressed  to  the  discre- 
tion of  the  court.  In  this  case  the  parties  were  attempting 
to  escape  the  conviction  of  the  court,  on  a  question  of  law. 
The  judge  who  tried  the  cause  gave  the  appellants  a  fair  bill 
of  exceptions,  which  is  all  they  could  demand. 

In  chancery  causes  the  refusal  of  the  court  to  submit 
issues  to  the  jury  is  no  ground  for  error.  Acts  1865,  73, 
§  154.  Appellants'  issues  were  wrongly  framed.  The  chan- 
cellor could  have  tried  the  cause  without  any  jury,  and  the 
rights  of  appellants  were  not  affected  by  submitting  to  the 
jury  material  or  immaterial  issues. 

The  court  properly  required  appellants  to  lay  a  founda- 
tion for  their  oral  proof  by  written  muniments  of  title. 
Without  this  foundation  the  oral  proof  was  incompetent. 
Appellants  proved,  by  the  record,  that  they  owned  claim 
number  one  south-west,  and  also  twenty -five  feet  of  dis- 
covery. Their  record  of  this  fact  was  notice  to  all  parties 
that  might  be  affected  thereby.  Appellants  asked  to  prove 
that  their  record  was  false  by  showing  that  the  record  claim 
number  one  south-west,  and  twenty-five  feet  of  discovery, 
was  claim  number  one  south-west,  and  nothing  else.  The 
court  held  appellants  to  introduce  record  proof  which  their 
verbal  testimony  would  fit,  not  contradict.  They  refused 
to  do  this,  and  voluntarily  dismissed  their  case,  and  then 
moved  the  court  to  set  aside  their  deliberate  acts.  They 
should  have  submitted  their  case  to  the  jury  on  their  proof. 
How  can  this  court  say  what  the  verdict  would  have  been, 
or  that  appellants  were  injured  at  all. 

The  record  was  the  best  evidence.  Appellants  claim  it 
was  not  true,  and  that  parol  evidence  is  the  best.  Titles  do 
not  rest  on  such  flimsy  foundations.  The  order  in  which 
evidence  may  be  introduced  is  a  matter  of  discretion. 
Unless  there  has  been  a  gross  abuse  of  this  discretion  by 
the  court  below,  the  proceedings  will  not  be  revised.  Hil- 
liard  on  New  Trials,  300.  307.  331,  and  £  573. 

The  real  question  in  this  case  is.  whether  the  court  was 
right  in  deciding  that  a  proper  record,  justifying  the  hold- 


78  CONNER  v.  McPnEE.        [Dec.  1Y 

ing  of  twenty-five  feet  of  discovery,  and  claim  number  one 
south-west,  of  one  hundred  feet,  as  one  claim,  was  neces- 
sary in  the  case.  Conner  wished  to  swear  it  was  in  his  mind 
all  only  one  claim.  Appellants  wished  to  hold  claim  number 
one,  by  proving  that  they  had  performed  work  upon  twenty- 
five  feet  of  discovery,  which  they  desired  to  attach  to  num- 
ber one.  The  court  stopped  them,  until  they  could  show  a 
record  in  harmony  with  their  proof. 

We  do  not  claim  that  a  person  cannot  locate  less  than 
two  hundred  feet  as  a  claim.  That  which  the  records  show 
a  claim,  cannot  be  changed  in  length  or  locality  by  any 
thing  less  than  a  re-location  shown  on  the  record.  It  was 
not  decided,  nor  claimed  in  the  court  below,  that  the  num- 
ber of  feet  must  appear  in  the  record.  It  is  dear  that  these 
may  be  omitted.  But  if  one  is  going  to  re-baptize  two 
claims,  he  must  do  so  by  record.  No  one  can,  bv  anv  men- 

«/  ?       •/  w 

tal  action,  take  up  the  dividing  line  between  a  discovery 
claim  and  claim  number  one,  and  move  it  twenty-five  feet 
over  on  the  discovery  claim,  and  thereby  make  it  the 
dividing  line.  A  record  is  the  one  essential  thing  to  change 

a  line. 

KNOWLES,  J.  The  first  question  presented  in  this  case  is 
one  of  practice.  Can  the  plaintiffs  in  an  action  move  to  set 
aside  a  nonsuit  when  they  have  consented  to  it.  upon  its 
becoming  apparent,  from  the  rulings  of  the  court,  that  they 
could  not  recover,  basing  their  motion  upon  alleged  error 
in  the  rulings  of  the  court,  which  induced  them  to  consent 
to  the  nonsuit  ? 

Such  practice  we  hold  proper.  See  Natoma  Water  and 
Mining  Co.  v.  Glarlkin,  14  Cal.  544.  A  nonsuit  in  such 
cases  is  treated  as  and  governed  by  the  same  rules  as  an 
involuntary  nonsuit. 

The  only  ground  of  error  assigned  which  we  deem  it 
material  to  examine,  is  the  exclusion  of  the  evidence  offered 
by  the  appellants. 

They  offered  in  evidence  the  records  of  Madison  county, 
showing  the  record  of  Conner's  location  of  the  ground  in 


L868.]  CONXEB  «.  McPiiEE.  79 

dispute  ,  a  deed  from  Miriiss  to  Conner  of  twenty-live  feet 
of  the  ground  in  dispute  ;  a  deed  from  Conner  to  O'Neal  of 
one-half  of  the  ground  in  dispute  ;  and,  lastly,  they  offered 
lo  prove  by  the  testimony  of  Conner  the  number  of  feet 
^taked  off  by  him  for  the  claim  number  one,  south-west  from 
discovery  on  the  Ore  Cache  lode,  the  size  of  the  stakes,  the 
notice  written  on  them,  and  the  amount  of  labor  performed 
on  said  claims  within  six  months  after  the  location  of  the 
same.  The  record  of  location  offered  did  not  specify  the 
number  of  feet  claimed.  The  court  refused  to  allow  the 
appellants  to  prove  these  facts,  until  they  should  first  lay 
the  foundation  therefor,  by  proving  "that  the  claim  in  con- 
troversy was  pre-empted,  and  appears  on  the  record  in  due 
form  as  embracing  the  number  of  feet  claimed  for  it  by 
plaintiffs."  This  is  the  exact  language  of  the  bill  of  excep- 
tions, and  would  imply  that  the  court  held  that  the  record 
of  the  location  of  a  quartz  claim  should  specify  the  number 
of  feet  claimed,  and  that  the  appellants,  in  this  case,  should 
h'rst  introduce  such  a  record  before  the}^  could  introduce 
other  evidence.  This  we  hold  error.  The  language  of  th»* 
Idaho  statute,  in  relation  to  the  location  and  recording  of 
quartz  claims  in  force  at  the  time  of  the  location  and  record- 
ing of  the  claim  in  dispute  by  appellants,  is  as  follows  : 

k'All  claims  shall  be  recorded  in  the  county  recorder's 
office  within  ten  days  from  the  time  of  posting  notices 
thereon." 

What  record  must  a  locator  of  a  quartz  claim  make  to 
satisfy  this  law  ?  Courts  generally  give  to  such  a  statute  the 
interpretation  usually  accorded  to  it  by  the  people  who  use 
the  terms  therein  employed.  Recording  a  claim  is  a  phrase 
used  among  the  locators  of  mining  claims.  It  is  a  law 
maxim  of  general  application  that  contemporaneous  exposi- 
tion of  a  statute  has  great  strength  in  controlling  its  inter- 
pretation. By  examining  the  records  of  quartz  claims  in 
the  several  counties  of  this  Territory,  which  were  once  a 
part  of  Idaho,  and  the  records  of  quartz  claims  of  the  several 
counties  of  Idaho,  at  the  time  this  law  came  into  force,  and 
we  will  arrive  at  some  conclusion  as  to  what  wa>  u-eii--rall\ 


80  CONNER  v.  McPnEE.  [Dec.  T., 

understood  by  the  locators  of  quartz  claims  at  that  time, 
was  a  compliance  with  the  law  requiring  the  recording  of 
quartz  mining  claims.  An  examination  of  these  records,  wt 
are  confident,  will  show  that  it  was  not  generally  considered 
necessary  to  state  in  the  record  the  number  of  feet  claimed. 
This  seems  to  be  conceded  by  tlie  attorneys  for  both  parties. 
And  it  is  contended  by  the  attorneys  for  the  respondent 
that  the  court  did  not  rule  that  a  record  should  show  the 
number  of  feet  claimed.  If  such  was  the  case,  we  do  not 
understand  the  bill  of  exceptions  signed  by  the  judge  who 
tried  the  cause,  or  why  the  record  of  appellants'  location  was 
excluded.  If  the  court  had  no  objecions  to  Conner's  testi- 
mony, and  only  directed  that  there  should  be  first  intro- 
duced the  record  of  his  location  of  the  claim  in  dispute, 
and  did  not  hold  that  this  record  should  specify  the  number 
of  feet  claimed,  the  very  record  demanded  had  already  been 
offered  in  evidence,  and  one  of  the  objects  of  Conner's  testi- 
mony was  to  establish  the  number  of  feet  in  claim  number 
one,  south-west  from  discovery  in  the  Ore  Cache  lode,  at  the 
time  this  record  was  made.  If  the  ruling  of  the  court  is  not 
as  we  understand  it,  then  the  language  used  in  the  bill  of 
exceptions,  signed  by  the  judge  who  made  the  ruling,  is 
very  unfortunate. 

We  have  been  led  to  infer,  however,  from  the  arguments 
of  counsel  on  both  sides,  that  the  bill  of  exceptions  filed 
does  not  fully  present  all  the  difficulties  experienced  on  the 
trial  of  this  cause.  Hence  we  have  felt  that  it  was  difficult 
to  render  a  decision  which  might  not  mislead  the  parties  on 
a  re-trial  of  the  cause.  We  can,  however,  be  governed  only 
by  the  record  presented  to  us.  It  is  very  defective,  and, 
perhaps,  on  our  own  motion  we  ought  to  have  sent  it  back 
to  be  perfected. 

We  might  follow  at  some  length  the  arguments  of  the 
counsel  for  respondent,  and  show  that  notwithstanding 
the  facts  may  have  been  as  presented  in  their  argument, 
still  the  court  erred  in  excluding  the  testimony  offered. 
But  should  we  do  so  we  might  be. justly  accused  of  present- 
ing as  many  immaterial  matters,  in  our  opinion,  as  there 


1868.]  ANDERSON  v.  O'LAUGHLIN.  81 

are  immaterial  issues  presented  by  the  pleadings  in  this 
cause. 

In  accordance  with  the  views  above  expressed,  the  judg- 
ment of  the  court  below  is  reversed,  a  new  trial  granted, 
and  the  cause  remanded  for  further  proceedings. 

Exceptions  sustained. 
WARREN,  C.  J.,  concurred. 


ANDERSON,  appellant,  v.  O'LAUGHLIN,  respondent. 

PRACTICE  —  statement  —  exceptions — new  trial.    An  order  of  the  district  court 

denying  a  motion  for  a  new  trial  will  be  sustained,  if  there  is  no  statement 

specifying  errors,  or  bill  of  exceptions. 
REPLEVIN — return  of  property  after  verdict.    A  judgment  for  costs  and  the 

return  of  the  property  follow  a  general  verdict  for  defendant  in  a  replevin 

suit. 
PRACTICE — motions  under  advisement.    It  is  not  error  for  the  district  court  to 

take  motions  under  advisement  from  one  term  to  another. 

Appeal  from  the  Second  District,  Deer  Lodge  County. 

ANDERSON  brought  this  suit  in  May,  1867,  in  the  justices' 
court  of  Deer  Lodge  county,  NEWCOMER,  J.,  to  recover  the 
possession  of  a  horse  of  the  value  of  $80.  The  cause  was 
appealed  and  tried  in  the  district  court  in  July,  1867.  The 
jury  returned  the  following  verdict : 

"  We,  the  jury  in  the  above  cause,  find  for  the  defendant." 
Anderson  tiled  a  motion  for  a  new  trial  because  the  ver- 
dict was  illegal  in  not  specifying  the  property  and  giving 
its  value,  and  finding  that  it  should  be  returned.  The  de- 
fendant tiled  a  motion  for  the  entry  of  judgment  on  the  ver- 
dict. The  court,  WILLISTON,  J.,  took  both  motions  under 
advisement.  At  the  following  October  term,  the  motion  for 
a  new  trial  was  denied,  and  judgment  was  entered  upon  the 
verdict  for  the  defendant.  The  other  facts  are  given  in  the 
opinion. 

VOL.  1.— 11 


82  ANDERSON  v.  O'LAUGHLIN.  [Dec.  T. 

BROWN  &  McMuRTRY  and  WORD  &  SPRATT,  for  appellant 

The  answer  raises  two  issues ;  first,  the  unlawful  deten 
tion  of  the  property  ;  second,  the  title  of  respondent  to  the 
property.  The  general  verdict  does  not  show  on  which  of 
these  issues  the  jury  based  their  finding.  This  verdict  will 
not  authorize  a  presumption  of  law  that  the  property  was 
in  the  respondent  and  that  he  was  entitled  to  its  return. 
Under  the  answer,  respondent  might  have  had  a  verdict  as 
to  the  unlawful  detention,  and  the  court  had  no  right  to  sup- 
pose it  was  for  any  thing  else.  The  verdict  was  erroneous 
in  not  finding  that  the  respondent  was  entitled  to  a  return 
of  the  property.  The  statute  is  imperative  and  requires  the 
jury,  not  the  judge,  to  find  this  fact.  Acts  1865,  73,  §  150. 
The  verdict  was  erroneous  in  not  finding  the  value  of  the 
property.  "The  jury  *  *  *  sliall  find  the  value,"  is 
the  language  of  the  statute.  Acts  1865,  73,  §  150.  The 
court  did  not  find  the  value  when  judgment  was  entered. 

The  court  below  had  no  right  to  submit  all  the  issues  to 
the  jury,  and  then  permit  them  to  find  one-half,  and  find 
the  other  half  himself.  The  appellant  had  a  right  to  have 
every  issue  raised  by  the  pleadings  tried  by  a  jury.  The 
statute  points  out  the  only  three  ways  by  which  the  court 
can  try  or  find  an  issue  of  fact,  and  in  this  case  the  court 
usurped  the  powers  of  the  jury.  Acts  1865,  73,  §§  152 
and  153. 

The  case  was  tried  in  July,  1867,  and  judgment  was  ren- 
dered at  the  October  term,  1867.  The  statute  then  required 
the  judgment  to  be  entered  within  twenty-four  hours  after 
the  rendition  of  the  verdict,  unless  the  court  order  the  case 
to  be  reserved  for  argument.  The  court  made  no  such  order. 
Acts  1865,  77,  §  173.  This  statute  is  imperative,  and  the 
judgment  is  null  and  void. 

L.  J.  SHARP,  for  respondent, 

The  main  issue  in  the  pleadings  is  the  title  to  the  horse. 
A  general  verdict  for  defendant  is  a  finding  on  the  chief 
issues.  People  v.  March,  6  Cal.  547 ;  Kidd  v.  Laird.  Iff 
id.  182. 


1868.]  ANDERSON  o.  O'LAUGHLIN.  88 

In  an  action  of  replevin,  a  general  verdict  for  defendant 
entitles  him  to  a  judgment  for  the  return  of  the  property. 
Waldman  v.  Broder,  10  Cal.  379  ;  Nickerson  v.  California 
S.  Co.,  id.  521  ;  Hunt  v.  Robinson,  11  id.  277 ;  Treat  \. 
Lafarge,  15  id.  41. 

If  there  was  any  error  in  the  verdict  or  judgment,  appel- 
lant cannot  complain  of  it.  A  judgment  will  not  be  reversed 
for  an  error  which  does  not  prejudice  the  rights  of  the  par- 
ties. Kilburn  v.  Ritchie,  2  Cal.  148 ;  People  v.  Moore,  8 
id.  94 ;  Kidd  v.  Laird,  15  id.  182. 

The  words  "may"  and  "shall"  in  the  statute  referred  to 
by  appellant  are  convertible  terms.  Cook  v.  Spears,  2  Cal. 
412  ;  Acts  1865,  73,  §  150,  and  78,  §  176. 

WARREN,  C.  J.  This  was  an  action  of  replevin,  tried,  on 
appeal  from  a  justices'  court,  in  the  district  court  of  the 
second  judicial  district,  in  the  county  of  Deer  Lodge.  No 
complaint  or  statement  of  the  cause  of  action  was  filed,  but 
no  objection  is  raised  to  that  omission.  The  respondent 
filed  his  answer  to  the  allegations  contained  in  the  affidavit 
of  appellant,  for  delivery  of  the  propert}'  claimed. 

The  answer  denies  the  ownership  and  right  of  possession 
alleged  by  appellant,  and  sets  up  title  and  right  of  posses- 
sion in  respondent,  and  claims  damages  for  the  taking  and 
detention  of  the  property,  the  value  of  which  is  not  denied. 

The  property  had  been  taken  under  this  proceeding  from 
the  possession  of  respondent  and  delivered  to  appellant, 
and  the  answer  claims  return  thereof.  Upon  trial  of  the 
issues  the  jury  found  a  general  verdict  for  the  defendant, 
respondent  in  this  cause. 

Appellant  entered  a  motion  for  a  new  trial,  and  respond- 
ent moved  for  an  order  for  return  of  the  property  replev- 
ined,  and  for  judgment  for  his  costs.  Both  motions  were 
taken  under  advisement  by  the  court,  and,  at  the  following 
term,  an  order  was  made  overruling  the  motion  for  a  new 
trial,  and  judgment  was  rendered  on  the  verdict  against 
appellant  for  costs  and  for  return  of  the  propeity.  from 
which  this  appeal  is  taken. 


84  LEE  v.  HUDSON.  [Dec.  T., 

So  far  as  the  order  overruling  the  motion  for  a  new  trial 
is  concerned,  it  is  only  necessary  to  say  that  no  statement 
specifying  errors,  or  bill  of  exceptions,  was  filed  in  the 
court  below,  and  consequently  the  order  must  be  sustained. 

We  see  no  error  on  the  face  of  the  record  before  us  of 
which  appellant  has  a  right  to  complain.  He  is  not  injured 
by  the  form  of  the  verdict.  The  respondent  might  complain 
that  the  jury  failed  to  find,  in  their  verdict,  the  value  of  the 
property ;  that  he  was  entitled  to  a  return  thereof,  and  to 
assess  his  damages,  but  the  appellant  cannot.  Upon  a  gen- 
eral verdict  for  defendant  upon  these  issues  under  our  stat- 
ute, as  well  as  at  common  law,  an  order  of  return  and  judg- 
ment for  costs  followed,  as  a  matter  of  course. 

The  court  did  not  err  in  taking  the  motions  under  ad- 
visement. 

The  judgment  and  order  of  the  court  below  is  affirmed, 

with  costs. 

Exceptions  overruled. 
KNOWLES,  J.,  concurred. 


LEE,  respondent,  v.  HUDSON,  appellant. 

PIJEADING —  complaint.    The  allegation  of  the  release  of  a  debt  due  the  plain 
tiff  is  sufficiently  set  forth  in  the  complaint  in  this  case. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

ON  September  16,  1868,  Lee  filed  his  complaint  in  the 
justices'  court  of  Lewis  and  Clarke  county,  A.  J.  Edwards, 
Esq.,  justice,  and  alleged  : 

"That,  on  or  about  the  25th  day  of  August,  A.  D.  1868, 
one  James  Allen  was  indebted  unto  the  said  plaintiff  in  the 
sum  of  $125 ;  that  the  above-named  defendant,  on  the  day 
aforesaid,  was  indebted  to  the  said  Allen  in  a  sum  of  money 
greater  than  that  due  from  said  Allen  to  this  plaintiff ;  that, 
at  the  special  instance  and  request  of  said  defendant,  this 
plaintiff  agreed  to  take  the  said  defendant  for  the  payment 


1868.]  LEE  ?>.  HUDSON.  86 

of  the  said  sum  due  from  the  said  Allen  to  this  plaintiff, 
and  to  accept  of  his  promise  to  pay  the  said  sum  in  satis- 
faction of  said  debt ;  that  this  plaintiff  did  then  and  there 
so  take  and  accept  of  the  said  defendant' s  promise  and  lia- 
bility, and  the  said  Allen  then  and  there  released  said 
defendant  from  his  liability  to  him  the  said  Allen,  to  the 
extent  and  amount  of  this  plaintiff's  claim,  to  wit:  the  sum 
of  $125,  whereby  the  said  defendant  became  liable  to  pay 
this  plaintiff  the  said  sum  of  $125  ;  and  on  the  1st  day  of 
September,  A.  D.  1868,  did  pay  this  plaintiff  upon  said  sum 
the  sum  of  $75,  leaving  a  balance  due  and  unpaid  from  the 
said  defendant  to  the  said  plaintiff,  at  the  time  of  the  com- 
mencement of  this  suit,  and  is  now  due  and  unpaid." 

The  case  was  appealed  to  the  district  court,  and  tried  in 
October,  1868.  After  the  plaintiff  closed  his  testimony,  the 
<  lefendant  moved  for  a  nonsuit,  upon  the  following  grounds : 
That  plaintiff's  complaint  contained  no  allegation  that  the 
original  debt,  due  from  Allen  to  plaintiff,  was  ever  canceled, 
or  that  Allen  was  released  from  his  debt  to  plaintiff  at  the 
time  of  the  transaction  specified  in  the  complaint.  The 
court,  KNOWLES,  J.,  denied  the  motion,  and  defendant 
excepted. 

J.  A.  JOHNSTON,  for  appellant. 

CHUMASERO  &  CHADWICK,  for  respondent. 
No  briefs  on  file  in  this  case. 

WARREN,  C.  J.    The  release  of  the  old  debt,  due  from 
Allen  to  the  plaintiff,  is  sufficiently  alleged  in  the  complaint 
The  judgment  is  affirmed,  with  costs. 

Exceptions  overruled. 
KNOWLES,  J.,  concurred. 


86  TERRITORY  OF  MONTANA  v.  MCELROY.    [Dec.  T., 

TERRITORY    OF    MONTANA,   appellant,    v.    MCELROY,    re- 
spondent. 

INDICTMENT — officer  taking  illegal  fees.  An  indictment  against  a  party  for 
taking  illegal  fees,  as  a  justice  of  the  peace,  must  allege  that  he  was  suob 
officer. 

Appeal  from  the  Second  District,  Deer  Lodge  County. 

McELROYr  was  indicted  in  September,  1868,  by  the  grand 
jury  of  Deer  Lodge  county.  The  indictment  alleged  "that 
James  McElroy,  an  acting  justice  of  the  peace  for  Elk  town- 
ship, in  the  county  *  *  *  while  acting  in  that  capacity 
as  such  officer  in  said  township,  *  *  *  willfully  did 
receive  and  take  fees  not  allowed  by  law  from  *  *  *  in 
the  case  of  *  *  *  then  and  there  had  and  held  before 
him  to  do  and  execute  his  duty  as  such  officer  therein,  and 
then  and  there,  at  the  time  aforesaid,  willfully  and  corruptly 
did  ask  and  demand  fees  not  allowed  by  law  from  *  *  * 
in  the  case  of  *  *  *  as  a  condition  precedent  to  the  per- 
formance of  his  duties  as  such  officer  *  *  *  ." 

The  defendant  moved  to  quash  the  indictment  because  it 
did  not  state  facts  sufficient  to  constitute  a  public  offense. 
The  court,  KNOWLES,  J.,  sustained  the  motion  and  the  de- 
fendant was  discharged.  The  Territory  appealed. 

W.  J.  STEPHENS,  District  Attorney,  Second  District,  for 
appellant. 

It  is  sufficient  to  state  generally  in  the  indictment  that 
defendant  is  such  officer  without  setting  forth  his  appoint- 
ment. Proof  that  defendant  has  acted  as  such  officer  is 
sufficient,  2  Chit,  Or.  L.  259. 

There  is  no  conflict  between  section  110  of  the  criminal 
practice  act,  making  it  criminal  to  officiate,  and  section  112, 
making  it  criminal  for  such  officer  to  receive  fees  not  allowed 
by  law. 

He  who  usurps  an  office  is  in  by  his  own  wrong,  and  can- 
not defeat  an  action  for  taking  illegal  fees  by  proving  that 
he  is  not  such  officer.  kt  No  person  can  take  advantage  of  his 
own  wrong.'* 


1868.]  LOEB  «.  SCHMITH.  87 

SHARP  &  NAPTON,  for  respondent. 

The  indictment  is  found  under  section  112  of  the  criminal 
practice  act.  The  very  essence  of  the  offense  is,  that  the 
defendant,  being  a  duly  elected  and  qualified  officer,  re- 
ceived illegal  fees,  etc.  The  indictment  only  shows  that  he 
was  an  "acting  officer."  1  Whart.  Am.  Cr.  L.,  §§  285,  1289 
and  1292. 

It  would  be  no  defense  under  this  indictment  to  prove 
that  the  defendant  was  not  a  lawfully  authorized  and  quali- 
fied officer.  Usurpation  of  the  duties  or  functions  of  an 
officer  is  made  an  offense  by  section  110  of  the  criminal 
practice  act. 

WARREN,  C.  J.  This  was  an  indictment  under  the  statute 
against  the  respondent,  as  a  justice  of  the  peace,  for  willfully 
receiving  fees  not  allowed  by  law.  The  indictment  was  de- 
tective in  not  alleging  in  the  language  of  the  statute  that  the 
defendant  was  sucli  officer.  This  allegation  might  have  been 
supported  by  proof  that  he  acted  as  such. 

The  order  of  the  court  below  is  affirmed. 

Exceptions  overruled. 

K.NOWLES,  J.,  concurred. 


LOEB,  appellant,  v.  SCHMITH  etal.,  respondents. 

PRACTICE— default  set  aside.    The  setting  aside  of  the  default  in  this  case  WM 
not  an  abuse  of  the  discretion  of  the  court  below. 

Appeal  from  the,  Second  District,  Deer  Lodge  County. 

THIS  was  an  action  on  a  promissory  note  commenced  by 
Loeb  in  the  district  court.  The  complaint  was  filed  and 
summons  was  issued  on  July  2;~.  1807.  The  names  of  the 
parties  on  Ihe  complaint  wen'  "  Leon  Loci)  v.  Jacob  Smith 
&  Co.,  and  Joseph  Holzbauer  etal."  Tlio  summons  con- 
tained a  notification  to  "Jacob  Smith  A:  C1o.  and  Joseph 
Holtzbauer.  Henry  Apple."  Tin-  sli.'riM'  m:i'l«-  tin'  follow. 


Sb  LOEB  v.  SCHMITH.  [Dee.  T.; 

ing  return  :  ' '  Served  the  within  by  reading  to  Henry  Apple, 
on  1st  day  of  October,  A.  D.  1867,  on  Bear  gulch,  Territory 
and  county  within  mentioned."  Judgment  by  default  was 
rendered  at  the  October  term,  1867,  against  "Jacob  Smith 
&  Co.  and  Jos.  Holtsbor  ct  al."  for  $907. 

On  September  10,  1868,  a  new  complaint,  for  the  same 
cause  of  action,  was  filed  by  Loeb  against  eight  defendants, 
who  were  separately  named,  and  included  "  Henry  Appel." 
This  complaint  alleged  that  the  defendants  were  partners  at 
the  time  the  note  was  made,  under  the  firm  and  style  of 
"Jacob  Schmith  &  Co."  The  summons,  which  contained 
the  names  of  these  defendants,  including  "Henry  Appel," 
was  issued  on  the  same  day.  The  sheriff's  return  showed 
that  personal  service  had  been  made  upon  "Henry  Apple," 
on  September  12, 1868,  by  reading  the  summons,  and  deliver- 
ing a  true  copy  of  the  same  and  a  certified  copy  of  the  com- 
plaint. On  September  23,  1868,  judgment  by  default  was 
rendered  in  the  district  court  for  $1,427.57,  against  all  the 
defendants,  and  also  "against  the  separate  property  of  the 
said  defendant,  Henry  Apple."  On  the  same  day  the  de- 
fendant, "Apple,"  filed  a  demurrer  to  the  complaint,  and 
also  a  motion  to  set  aside  the  judgment  against  him.  On 
October  2,  1868,  the  affidavit  of  K.  H.  Williams,  Esq.,  the 
attorney  of  "Eppel,"  was  filed  in  support  of  this  motion, 
and  stated  the  following  facts :  That  he  wrote  the  demurrer 
in  good  faith,  and  forwarded  it  to  be  filed  from  Beartown 
(so-called) ;  that  he  made  a  special  agreement  with  the 
express  agent  (no  United  States  mail  being  then  established 
between  Deer  Lodge  City  and  Beartown)  to  carry  through 
and  deliver  the  letter  containing  the  demurrer ;  that  three 
days  of  the  statutory  time  to  answer  were  yet  to  expire 
when  the  letter  was  expressed  ;  that  only  one  day  is  neces- 
sary to  carry  mail  matter  from  Beartown,  where  the  sum 
mons  was  served,  to  Deer  Lodge  City  ;  and  that  through  the 
delay  of  the  express  agent,  and  without  any  fault  of 
"  Eppel,"  the  letter  was  not  delivered  until  one  day  after  the 
time  for  answering  had  expired. 

That  Appel  had  never  been  a  member  of  the  firm  described 


1868.]  LOEB  t>.  SCHMITH.  89 

in  the  complaint ;  that  judgment  had  been  obtained  at  the 
October  term,  1867,  on  the  note  sued  upon  ;  that  said  judg- 
ment was  still  valid,  and  no  new  cause  of  action  had  accrued ; 
and  that  affiant  had  written  to  Eppel  to  be  in  court  at  10 
A.  M.  of  October  2,  1868,  and  placed  the  letter  post-paid  in 
the  U.  S.  post-office  of  Deer  Lodge  City  four  days  ago,  but 
had  received  no  answer,  and,  therefore,  affiant  made  this 
affidavit. 

No  other  affidavits  were  filed. 

The  note  was  as  follows  : 

"  604.50.  One  day  hafter  dayt  we  promise  to  pay  to  L. 
Loeb,  or  bearer,  the  sum  of  six  hundred  and  four  dollars 
50c.,  for  value  received,  whit  interest  from  date  at  5#  per 
each  month. 

BEAK  TOWN,  June  30,  1866. 

Mr.  Loeb  will  stamp  this  JACOB    SCHMITH    Co., 

If  stamps  are  had.  JOSEPH    HOLZBAUER. 

JACOB  SCHMITH  Co.,  ,  Internal  Revenue, . 

JOSEPH  HOLZBAUER."  1  »«*••  canceled. 

The  court,  KNOWLES,  J.,  set  aside  the  judgment  on  Octo- 
ber 8,  1868,  and  allowed  the  defendants  till  2  o'clock  p.  M. 
to  answer,  on  the  payment  of  all  costs.  The  plaintiff  excepted. 

ROBINSON  &  STEPHENS,  for  appellant. 

The  court  abused  its  discretion  in  setting  aside  the  default. 
The  affidavit  on  which  the  order  was  based  was  insufficient, 
and  made  by  an  improper  party  ;  and  there  was  no  answer 
with  the  affidavit.  Bailey  v.  Taafe,  29  Cal.  422.  Apple 
should  have  made  the  affidavit  instead  of  Williams,  his  attor- 
ney. Apple  used  no  diligence  to  appear  within  the  statutory 
time.  The  sending  of  a  frivolous  demurrer  by  express, 
instead  of  an  answer  to  parties,  not  known  to  the  record,  is 
not  diligence.  The  affidavit  must  show  that  the  default  was 
the  result  of  mistake,  surprise,  inadvertence  or  excusable 
neglect.  Prac.  Act  1867,  146,  §  68  ;  Harlan  v.  Smith,  6  Cal. 
173  ;  People  v.  0'  Connett,  23  id.  281. 

Every  fact  necessary  to  be  shown  to  authorize  the  court  tn 

VOL.  1.  — 12. 


90  CARPENTER  v.  RODGERS.  [Dec.  T.; 

set  aside  the  default  must  be  shown  by  the  affidavit  of  a 
person,  who  could  testify  upon  the  trial  of  the  cause  to  the 
facts.  Williams'  knowledge  is  derived  from  the  statements 
of  others,  and  is  not  competent  proof  by  affidavit  to  estab- 
lish the  connection  of  Apple  with  "  Schmith  &  Co."  Wil- 
liams' affidavit  is  inconsistent.  It  shows  that  Apple  was 
not  a  party  to  the  note  sued  upon,  and  that  a  former  judg- 
ment against  Apple  is  in  force,  without  any  new  cause  of 
action  accruing. 

There  should  have  been  an  answer  with  the  affidavit,  as 
the  complaint  was  verified,  and  there  was  nothing  from 
Apple  under  oath  to  indicate  that  he  had  a  defense.  See 
authorities  cited  above. 

R.  H.  WILLIAMS,  for  respondent. 

No  brief  on  file. 

WARREN,  C.  J.  This  is  an  appeal  from  an  order  of  the 
second  judicial  district  court  setting  aside  a  judgment 
entered  in  vacation  by  default,  against  Henry  Eppel  or 
Apple,  one  of  the  defendants  below,  with  leave  to  answer, 
•ipon  payment  of  costs.  The  setting  aside  of  the  default 
rested  in  the  discretion  of  the  court  below  upon  the  facts 
disclosed  in  the  affidavit,  and  we  see  no  such  abuse  of  that 
discretion  as  calls  for  the  interposition  of  this  court. 

The  order  is  affirmed  and  the  cause  remanded. 

Exceptions  overruled. 
KNOWLES,  J.,  concurred. 


CARPENTER,  respondent,  v.  RODGERS,  Territorial  Auditor, 

appellant. 

STATUTORY  ct  NSTRTTCTION  —  retroactive  effect.  Section  6  of  the  act  of  con- 
gress amending  the  organic  act  of  this  Territory,  approved  March  2,  1867 
did  not  have  a  retroactive  effect  and  give  full  force  to  a  law  from  the  date 
of  its  first  enactment,  which  had  been  annulled  by  congress  and  re-enacted 
by  a  subsequent  legislature  of  Montana. 


1868.  j  CAKPKNTKK  t\  RODGERS.  91 

STATUTORY  CONSTRUCTION*  —  meaning  of  itaid  section.  In  passing  said  section 
8,  congress  gave  to  subsequent  territorial  legislatures  the  right  to  re-enact 
certain  laws  that  had  been  annulled  by  congress. 

STATUTORY  CONSTRUCTION  —  historical  facts  referred  to.  This  court  can  refer 
to  the  history  of  the  Territory  to  ascertain  the  proper  construction  of  a 
statute  which  is  ambiguous. 

STATUTORY  CONSTRUCTION  —  rejtuynunt  proviso  void.  A  proviso  which  is  incon- 
sistent with  any  reasonable  intention  of  the  assembly  which  passed  it,  and 
repugnant  to  the  body  of  the  act,  is  void. 

Appeal  from  the  First  District.  Madison  County. 

IN  January,  1868,  Carpenter  filed  his  affidavit,  and  ap- 
plied for  a  peremptory  writ  of  mandate.  After  a  hearing  at 
chambers,  the  court,  HOSMER,  J.,  issued  the  writ  in  accord- 
ance with  the  application,  and  Rodgers  appealed.  The 
facts  appear  in  the  opinion. 

W.  M.   STAFFORD,  district   attorney,   first  district,   and 
DAVIS  &  TIIOROUGHMAN,  for  appellants. 
(No  brief  on  file.) 

WORD  &  SPRATT,  for  respondent. 

The  first  legislature  created  the  office  of  superintendent 
of  public  instruction.  Acts  1865,  433.  The  law  fixing  the 
salary  was  passed  by  the  second  legislature  on  April  10, 
1866.  Acts  1866,  17.  This  last  act  was  recognized  as  the 
law  of  this  Territory,  until  its  repeal  by  the  amended  or- 
ganic act  of  March  2,  1867. 

The  legislature,  elected  under  the  provisions  of  the  sixth 
section  of  this  act.  assembled  on  the  first  Monday  of  No- 
vember. 1867.  By  an  act  approved  December  24,  1867,  this 
legislature  re-enacted  the  law  of  April  10,  1866.  Acts  1867, 
2f>5,  £  6.  The  only  difference  between  them  is  a  slight  in- 
crease of  salary.  The  respondent  was  in  office  at  the  time 
of  the  passage  of  this  act.  An  equitable  construction  of 
these  statutes  would  award  him  his  salary.  The  Territory 
has  received  the  benefit  of  his  labors,  and  h<>  should  be  paid 
ther°for.  This  is  a  controversy  between  the  Territory  and 
on*-  of  its  citi/ens.  A  court  will  never  presume  that  it 
w:i~  *"h'  intention  of  the  lecrislntmv  to  T>erv>'lf rfit<>  ri  fraud 


92  CARPENTER  v.  RODGERS.  [Dec.  T.. 

by  receiving  respondent's  labor,  and  declare  that  the  law 
giving  him  his  salary  had  no  application  to  his  case. 
Smith's  Stat.  and  Const.  Law,  §§  694,  695. 

The  last  proviso  of  the  sixth  section  of  the  act  of  congress 
of  March  2,  1867,  is  repugnant  to,  and  repeals  all  parts  of 
the  section  in  conflict  with  it.  Does  this  section  make  all 
the  laws  passed  in  1866  void  ?  Does  it  suspend  them  until 
the  election  of  the  legislature  provided  for  ?  The  first  part 
of  this  section  makes  the  laws  void,  but  the  proviso  repeals 
this  part.  Sedg.  Stat.  and  Const.  Law,  title  "Proviso;" 
Smith's  Com.,  §§  578,  579. 

We  contend  that  the  laws  of  the  two  legislatures  of  Mon- 
tana, in  1866,  were  not  repealed  by  this  act  of  congress. 
They  were  only  suspended  until  an  election  of  the  legisla- 
ture should  take  place,  as  provided  for  in  the  act.  That 
election  took  place  before  the  commencement  of  this  suit. 
The  act  of  April  10,  1866,  was  then  in  full  force,  fixing 
respondent's  salary.  Respondent  is  entitled  to  recover 
under  this  act,  even  if  this  court  should  be  of  the  opinion 
that  the  act  of  December  24,  1867,  is  not  applicable. 

KNOWLES,  J.  This  cause  comes  to  this  court  on  appeal 
from  a  judgment  of  the  district  court  of  the  first  judicial 
district  of  this  Territory  awarding  the  respondent,  A.  M.  S. 
Carpenter,  a  peremptory  writ  of  mandamus  against  the 
appellant,  Wm.  H.  Rodgers,  as  territorial  auditor,  com- 
manding him  to  issue  to  respondent  territorial  warrants  for 
the  sum  of  $253.33,  for  salary  as  superintendent  of  public 
instruction  for  the  Territory. 

The  facts  presented  in  the  record  are  as  follows  :  Carpen- 
ter was  appointed  by  the  acting  governor  for  this  Territory 
superintendent  of  public  instruction,  and  confirmed  by  the 
legislative  council  on  the  4th  day  of  March,  1867.  He  en- 
tered upon  and  performed  the  duties  of  that  office  from  that 
time  until  January  4,  1868.  The  law  providing  for  the 
office  of  superintendent  of  public  instruction  was  enacted  by 
the  first  legislative  assembly.  No  salary  was  provided  for 
such  officer  until  a  law  was  enacted  fixing  the  same  by  the 


1868.]  CARPENTER  v.  RODGERS.  93 

second  legislative  assembly.  On  the  2d  day  of  March,  1867, 
two  days  before  the  appointment  of  Carpenter  to  said  office, 
congress  amended  the  organic  act  of  this  Territory. 

The  construction  of  section  6  of  this  amendment  is  the 
only  difficulty  presented  to  the  court  in  deciding  this  case. 

It  is  contended  by  the  respondent  in  the  first  place  that 
the  act  of  the  fourth  legislative  assembly,  entitled  "An  act 
to  define  the  duties  of  territorial  superintendent  of  public 
instruction,"  was  a  re-enactment  of  the  law  of  the  second 
legislative  assembly  upon  the  same  subject,  which  rendered 
this  act  of  the  second  legislative  assembly  valid. 

The  portion  of  the  section  under  consideration  which  it  is 
claimed  had  this  force  and  effect  reads  as  follows  : 

"And  be  it  further  enacted,  That  all  acts  passed  at  the 
two  sessions  of  the  so-called  legislative  assembly  of  the 
Territory  of  Montana,  held  in  eighteen  hundred  arid  sixty- 
six,  are  hereby  disapproved  and  declared  null  and  void, 
except  such  acts  as  the  legislative  assembly  herein  author- 
ized to  be  elected  shall,  by  special  act  in  each  case,  re- 
enact." 

Let  it  be  granted  that  the  act  of  the  fourth  legislative  as- 
sembly, entitled  "An  act  to  define  the  duties  of  territorial 
superintendent  of  public  instruction,"  was  a  re-enactment 
of  the  statute  upon  the  same  subject  by  the  second  legisla- 
tive assembly.  Does  this  section  have  the  force  claimed  for 
it  ?  It  is  certain  that  the  fourth  legislative  assembly  did  not 
expect  that  their  act  upon  this  subject  was  to  have  any  re- 
troactive effect,  for  the  last  section  of  their  act  reads  as  fol- 
lows : 

' '  This  act  to  take  effect  and  be  in  force  from  and  after  its 
passage." 

We  cannot  think  that  congress  intended  to  say  that  the 
acts  of  the  legislative  assembly  of  eighteen  hundred  and 
sixty-six,  which  the  fourth  legislative  assembly  should  by 
special  act  in  each  case  re-enact  should  be  valid  and  go  into 
effect  from  the  date  of  the  first  enactment.  The  more  rea- 
sonable view  of  what  congress  did  intend  to  do  is  this : 
Congress  no  doubt  entertained  the  opinion  that  should  it 


94  CARPENTER  v.  RODGEBS.  [Dec.  T.. 

disapprove  of  and  declare  null  and  void  the  laws  of  tlie  leg- 
islative assemblies  of  1866,  in  an  amendment  to  the  organic 
act  of  the  Territory,  without  giving  power  to  any  subse- 
quent legislature  to  re-enact  them,  it  would  amount  to  a  pro- 
hibition upon  their  re-enactment.  Hence  congress  intended 
to  give  the  privilege  to  any  subsequent  legislative  assembly 
to  re-enact  them.  To  give  this  section  any  other  construc- 
tion would  make  it  inconsistent  with  any  reasonable  inten- 
tion on  the  part  of  congress.  It  had  been  decided  by  some 
of  the  courts  of  this  Territory  that  the  legislative  powers 
thereof  had  lapsed,  and  that  all  the  laws  of  the  second  and 
third  legislative  assemblies  were  void.  In  part  to  remedy 
the  evils  which  it  was  found  by  this  decision  the  people  of 
this  Territory  were  liable  to  suffer,  this  amendment  to  the 
organic  act  was  passed. 

At  least  the  part  of  section  6  of  this  amendment  under 
discussion  does  not  declare  that  a  re-enactment  of  an  act 
passed  by  the  legislative  assemblies  of  1866,  by  the  legisla- 
tive'assembly  authorized  by  the  amendment,  would  make  it 
valid.  It  declares  that  such  acts  of  said  legislative  assem- 
blies as  the  legislative  assembles  authorized  by  it  shall 
specially  in  each  case  re-enact,  it  does  not  disapprove  of  and 
declare  null  and  void.  This  construction,  however,  leaves 
all  those  acts  which  might  be  specially  re-enacted,  in  each 
case,  just  where  they  were  before  the  amendment  to  the 
organic  act.  And  if  upon  a  mature  consideration  by  the 
courts  it  should  be  decided  that  such  acts  were  valid,  our 
statute  books  would  present  the  anomaly  of  having  two 
sets  of  statutes,  identical,  and  purporting,  as  in  this  case, 
to  go  into  force  at  different  times.  Or  take  the  other  con- 
struction, that  upon  the  special  re-enactment  of  these 
statutes,  they  should  be  made  valid  and  be  in  force  from 
their  passage  in  1866.  Xo  matter  if  this  re-enactment  should 
be  years  hence.  We  Avould  still  have  the  same  unprece- 
dented condition  of  affairs  of  two  statutes,  identical,  and 
each  going  into  effect  at  different  periods.  Should  any  of 
these  be  criminal  enactments,  for  years  they  might  be  con 
«idered  null  and  void.  All  at  once  upon  their  re-enactment 


1868.]  CARPENTER  c.  ROUGERS.  95 

they  would  be  considered  valid  and  in  force  from  the  time 
of  their  first  enactment.  Is  it  reasonable  to  suppose  that 
congress  intended  to  leave  the  door  open  to  any  such  state 
of  affairs?  If  so,  then  instead  of  removing  the  evils  by 
which  the  people  of  this  Territory  were  beset,  it  has  multi- 
plied them  and  failed  to  satisfy  the  necessity  for  any  such 
amendment  and  done  violence  to  the  very  object  of  its  pas- 
sage. Take  the  other  construction.  If  congress  intended 
to  leave  the  door  open  to  test  the  validity  of  all  laws  which 
the  legislative  assembly  it  had  authorized  should  in  each 
case  specially  re-enact,  it  must  have  seen  that  it  was  leaving 
the  door  open  for  a  vast  amount  of  litigation  instead  of 
dissipating  it  and  multiplying  the  opportunities  for  fraud 
and  sharp  practice  upon  the  people  of  the  Territory  by 
designing  men  in  subsequent  legislative  assemblies.  If  it 
should  be  found  that  such  acts  were  valid,  then  all  that 
would  be  necessary  to  bring  them  into  force  again  would  be 
to  have  them  re-enacted.  They  would  take  effect  from  their 
first  passage.  And  as  in  the  former  case,  laws  that  had 
long  been  considered  void,  would  come  into  force  to  affect 
the  rights  of  property  and  liberties  of  the  citizen.  It  will 
be  seen  from  the  first  proviso  in  this  section  that  congress 
supposed  the  door  had  been  left  open  only  to  test  the  valid- 
ity of  the  laws  of  1866,  where  vested  rights  had  accrued. 
Yet  if  the  construction  we  have  just  considered  be  correct, 
then  the  opportunity  is  presented  to  test  the  validity  of  all 
laws  re-enacted,  whether  there  were  any  vested  rights  in- 
volved or  not.  We  think  there  is  ambiguity  enough  in  this, 
section  to  allow  us  to  go  outside  of  the  wording  of  the  stat- 
ute to  tind  the  intention  of  congress.  AVlien  this  is  done, 
then1  is  no  doubt  but  that  the  construction  we  have  given 
to  this  portion  of  this  section  is  the  correct  one.  The  last 
proviso  in  this  section  is  more  difficult  of  construction  than 
any  other  portion  of  it.  It  provides  "That  no  legislation 
or  pretended  legislation  in  said  Territory,  since  the  adjourn- 
ment of  the  first  legislative  assembly,  shall  be  deemed  valid 
until  the  election  of  the  legislative  assembly  herein  provided 
for  shall  take  place/' 


96  CARPENTER  «.  RODGERS.  [Dec.  T., 

It  almost  appears  in  this  that  congress,  no  matter  what 
may  have  been  the  actual  intention,  does  say  that  when  the 
legislative  assembly  provided  for  should  take  place  that  all 
legislation  and  pretended  legislation  in  said  Territory  since 
the  first  legislative  assembly  should  be  deemed  valid.  Every 
legislative  act  ought  to  be  so  construed,  if  possible,  as  to 
make  it  consistent  with  itself.  To  give  such  a  construction 
to  this  proviso  as  the  one  above,  however,  would  make  con- 
gress say  in  the  first  part  of  this  section  that  all  acts  of  the 
two  legislative  assemblies  of  1866  were  null  and  void,  but 
that  the  legislative  assembly  authorized  might  have  the  lib- 
erty, by  a  special  act  in  each  case,  to  re-enact  them.  And 
in  the  latter  part  of  it,  that  upon  the  election  of  the  legisla- 
tive assembly  provided  for,  not  only  all  the  legislation  of 
these  two  assemblies,  but  of  any  other  legislative  assemblies 
or  pretended  legislative  assemblies  since  the  first  legislative 
assembly,  should  be  deemed  valid,  which  would  do  away 
with  any  necessity  of  their  re-enactment.  Surely  there  is 
ambiguity  enough  presented  here  to  permit  a  court  to  look 
at  the  extraneous  facts  to  find  the  proper  construction  of 
this  statute. 

It  is,  we  believe,  a  part  of  the  history  of  this  Territory, 
that  about  the  time  this  amendment  to  our  organic  act  was 
passed,  the  governor  of  this  Territory  had  convened  an 
extra  session  of  the  legislative  assembly.  The  only  solu- 
tion of  this  remarkable  proviso  is,  that  congress  intended 
to  annul  the  laws  of  this  assembly  until  the  election  of  the 
legislative  assembly  authorized  should  take  place.  Had 
that  legislative  assembly  continued  its  labors,  we  would,  no 
doubt,  be  forced  to  the  construction  that,  upon  the  election 
of  the  legislative  assembly  provided  for,  all  its  acts  would 
be  deemed  valid,  if  this  is  the  proper  construction  of  this 
proviso.  Perhaps,  however,  it  is  too  broad  in  its  terms  to 
receive  any  construction  which  would  confine  its  application 
to  one  legislative  assembly. 

There  is  one  thing  to  be  observed  in  this  proviso.  It  is 
not  in  the  usual  form  of  one.  The  usual  effect  of  a  proviso 
is  to  limit,  in  some  enumerated  particulars,  the  general  effect 


1868.]  CARPENTER  «.  RODGERS.  97 

of  the  purview  of  an  act.  This,  however,  if  it  has  the  force 
and  effect  claimed  for  it  by  the  respondents,  would  repeal 
the  purview  of  this  section,  and  leave  it  no  functions  to  per- 
form whatever.  In  fact,  this  proviso  giving  it  the  construc- 
tion claimed  for  it.  is  totally  repugnant  to  the  whole  purview 
of  the  section,  and  makes  the  act,  instead  of  an  annulling  act, 
one  enacting  that  upon  the  happening  of  a  certain  event 
which  the  amendment  to  the  organic  act,  of  which  this  sec- 
tion is  a  part,  provides,  shall  take  place  not  only  all  legis- 
lation, but  all  pretended  legislation  in  this  Territory  since 
the  first  legislative  assembly  shall  be  deemed  valid.  Some 
authority  has  been  cited  to  the  effect  that,  when  a  proviso 
is  repugnant  to  the  purview  of  a  statute,  the  proviso  should 
stand,  and  be  deemed  a  repeal  of  the  purview. 

KENT  says  :  "A  saving  clause  in  a  statute  is  to  be  rejected 
when  it  is  directly  repugnant  to  the  purview  or  body  of  the 
act,  and  could  not  stand  without  rendering  the  act  incon- 
sistent and  destructive  of  itself."  See  1  Kent,  522. 

Again,  in  discussing  the  rule  that  had  been  laid  dcwn  in 
relation  to  a  proviso,  he  says:  "But  it  maybe  remarked 
upon  this  case  of  Fitzgibbon,  that  a  proviso  repugnant  to 
the  purview  of  the  statute  renders  it  equally  nugatory  and 
void  as  a  repugnant  saving  clause.  And  it  is  difficult  to 
see  why  the  act  should  be  destroyed  by  the  one  and  not  by 
the  other ;  or  why  the  proviso  and  the  saving  clause,  when 
inconsistent  with  the  body  of  the  act,  should  not  both  of 
them  be  equally  rejected."  See  1  Kent's  Com.  523. 

It  is  difficult  to  see  why  a  proviso  which  makes  an  act 
inconsistent  with  any  reasonable  intention  on  the  part  of 
the  legislative  body  which  enacted  it,  and  makes  it  incon- 
sistent with  itself,  and  is  totally  repugnant  to  the  body  of 
the  act,  and  destroys  its  effect  altogether,  should  stand. 
After  a  mature  consideration  we  are  impelled  to  the  con- 
clusion that  it  should  not;  and,  as  the  effect  claimed  for 
this  proviso  is  as  above  stated,  we  are  compelled  to  hold  if 
that  is  its  proper  construction  it  is  void. 

In   accordance   with   the  views    above    expressed,   it  is 
VOL.  1  —  13 


98  WILSON  v.  DAVIS.  [Dec.  T-, 

ordered  that  the  judgment  of  the  court  below  be  reversed, 
and  that  a  peremptory  writ  of  mandate  be  denied. 

Writ  of  mandate  denied. 
WARREN,  G.  J.,  concurred. 

The  legislature,  by  an  act  approved  January  12,  1872. 
appropriated  $241.12,  in  payment  of  Carpenter's  claim  for 
services  as  territorial  superintendent  of  public  instruction. 


WILSON,  respondent,  0.  DAVIS  et  al.,  appellants. 

RECEIVER — no  appeal  from  his  appointment.    No  appeal  lies  from  an  order  of 

the  district  court  for  the  appointment  of  a  receiver. 
JURISDICTION  CONFERRED  BY  LAW.    An  agreement  of  parties  cannot  confer 

upon  this  court  jurisdiction,  which  is  not  given  bj  law. 

Appeal  from  the  First  District,  Oallatin  county. 

THIS  case  came  before  the  court  at  the  August  term,  1870, 
and  the  facts  are  contained  in  the  report  on  page  .  In 
October,  1867,  Wilson  brought  this  action  in  the  first  dis- 
trict in  Gallatin  county.  After  a  hearing  at  chambers,  the 
court,  HOSMER,  J.,  appointed  a  receiver  to  take  charge  of 
the  property  in  controversy,  and  issued  an  order  restraining 
some  of  the  defendants  from  interfering  with  the  same.  The 
other  facts  appear  in  the  opinion.  Upon  the  hearing  on 
appeal,  the  appellants  filed  the  affidavit  of  T.  Thoroughman, 
Esq.,  one  of  their  attorneys,  who  testified  as  follows:  That 
the  attorneys  of  respondent,  at  the  time  appellants  took 
their  exceptions  in  this  cause,  orally  waived  all  notices  and 
other  legal  formalities  on  appeal. 

The  arguments  of  counsel  upon  the  merits  of  the  cause 
are  omitted. 

DAVIS  &  THOROUGHMAisr  and  WOOLFOLK  &  TOOLE,  for 
appellants. 

The  affidavit  of  Thoroughman,  on  file  in  this  case,  shows 
that  all  notices  and  other  legal  formalities  were  waived  at 


1868.]  WILSON  -o.  DAVI>.  99 

the  time  of  the  exceptions.  No  counter  affidavit  has  oeen 
filed,  and  respondent  is  concluded  by  the  said  affidavit. 
This  appeal  is  as  perfect  as  if  all  the  requirements  of  the 
statute  had  been  complied  with.  If  this  court  believes  that 
such  a  stipulation  was  made,  as  shown  by  said  affidavit, 
respondent  cannot  now  deny  the  same  without  proof,  and 
thereby  practice  a  fraud  and  deceit  upon  appellants.  Appel- 
lants have  no  remedy  for  such  an  injury,  as  the  time  within 
which  such  notices  must  be  given  has  long  since  elapsed. 
We  hold  that  a  sense  of  justice,  binding  in  the  mind  of  all 
courts,  would  declare  that  such  agreements  are  binding  and 
must  be  faithfully  kept. 

The  record  shows  that  appellants  at  the  time  excepted  to 
the  action  of  the  court  below  in  appointing  a  receiver,  and 
refusing  to  dissolve  an  injunction  restraining  some  of  the 
appellants ;  and  that  appellants  then  filed  their  bond  of 
appeal  upon  both  questions,  and  thereby  took  them  to  the 
supreme  court. 

W.  F.  SANDERS  and  WORD  &  SPRATT,  for  respondent. 

This  appeal  should  be  dismissed.  The  case  is  governed 
by  the  practice  act  of  the  first  legislature.  No  appeal  bond 
has  been  filed  as  required  by  law.  Acts  1865,  97,  §  263. 

No  notice  of  the  appeal  was  ever  filed  or  served  upon  the 
respondent.  The  service  of  the  notice  may  be  a  legal 
formality,  which  may  be  waived,  the  filing  of  the  notice  is 
not  a  legal  formality.  It  is  the  appeal  itself.  This  court 
has  no  jurisdiction  without  such  notice  being  filed,  and  no 
jurisdiction  can  be  conferred  by  the  consent  or  agreement 
of  parties.  That  which  the  statute  requires  is  not  a  "  for- 
mality  ""  simply.  Acts  1868,  95,  §252  ;  Bonds  v.  HicJcman, 
29  Cal.  400;  Wake  man  \.  Cole  man.  28  id.  58;  Hildreth  v. 
Gioitidon,  10  id.  490  ;  Franklin  \ .  llciner,  8  id.  340.  The 
transcript  must  show  that  the  notice  of  appeal  was  filed; 
that  service  of  the  same  was  waived,  if  it  was  not  served; 
and  that  an  undertaking  was  filed  within  the  time  prescribed 
by  law.  See  authorities  cited  above. 

No  appeal    is  nllowrd    by  law   from  an  order  of  court 


100  KLEINSCHMIDT  v.  MORSE.  [Dec.  T., 

appointing  a  receiver,  until  after  final  judgment.  Acts  1865, 
95,  §  251.  The  appellants  took  exceptions  to  the  order 
appointing  a  receiver  made  on  November  9,  1867.  The 
injunction  was  not  granted  until  December  following.  No 
exception  was  taken  to  this  order,  and  no  appeal  was  taken 
therefrom.  Appellants  cannot  appeal  from  one  intermediate 
order  and  ask  the  court  to  review  other  orders  of  the  court 
below. 

WARREN,  C.  J.  This  purports  to  be  an  appeal  from  an 
order  made  in  this  court  at  chambers  by  Hon.  H.  L.  HOSMER, 
judge  of  the  first  judicial  district  court  at  Madison  county, 
on  the  motion  of  the  respondent  appointing  a  receiver. 

The  appointment  of  a  receiver  is  an  interlocutory  pro- 
ceeding, and  from  such  an  order  no  appeal  lies.  The  record 
shows  no  motion  to  dissolve  the  injunction,  and  no  order 
refusing  to  dissolve  it,  and  no  final  judgment  or  order  from 
which  an  appeal  could  be  taken. 

The  bill  of  exceptions  filed  with  the  transcript,  and  the 
original  bond  filed  in  this  court,  show  that  it  was  intended 
to  appeal  from  the  order  of  the  court  appointing  the  receiver. 
No  notice  of  appeal  appears  to  have  been  filed  or  given,  but 
an  affidavit  accompanies  the  record  that  all  legal  formalities 
were  orally  waived  by  respondent  on  the  appeal. 

No  agreement  of  parties  can  confer  upon  the  court  a 
jurisdiction  which  is  not  given  by  law. 

The  appeal  is  dismissed,  with  costs. 

Appeal  dismissed. 
KNOWLES,  J.,  concurred. 


KLEINSCHMIDT,  appellant,  v.  MORSE,  respondent. 

PRACTICE  —  appearance  —  waiver  of  summons.  A  party  appears  generally  In 
an  action  and  waives  a  summons,  if  he  comes  into  court,  without  limiting 
his  object  in  so  doing. 

PRACTICE  —  appenrance  —  sif/ning  stipulation.  The  signing  of  a  certain  stipu- 
lation in  this  case  was  a  general  appearance. 


1868  ]  KLEINSCHMIDT  «.  MORSE.  101 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

IN  December,  1867,  Klernschmidt  commenced  this  action 
upon  certain  drafts  in  the  district  court.  In  February, 
1868,  an  amended  complaint  was  filed  and  an  alias  sum- 
mons was  issued,  which  was  returned  by  the  officer  as  per- 
sonally served.  On  March  2, 1868,  the  defendant  appeared 
specially,  and  moved  to  quash  the  alias  summons,  and  the 
return  of  service  indorsed  upon  it.  This  motion  was  sus- 
tained by  the  court  on  March  9,  1868. 

In  December,  1867,  Kleinschmidt  obtained  a  writ  of  at- 
tachment, and  defendant  filed  a  plea  in  abatement  of  the 
same  on  March  12,  1868.  It  commenced  as  follows  :  "And 
now  comes  Benajah  Morse,  *  *  *  defendant,  and  files 
this  his  plea."  *  *  *  This  was  verified  by  the  defend- 
ant. Afterward,  but  upon  the  same  day,  a  stipulation  of 
the  parties  was  filed,  which  is  contained  in  the  opinion. 
Judgment  was  then  rendered  for  plaintiff'  for  $16,880.  On 
June  3,  1868,  the  defendant  filed  a  motion  to  vacate  this 
judgment.  The  court,  MUNSON,  J.,  sustained  the  motion, 
and  plaintiff  excepted. 

The  other  facts  appear  in  the  opinion. 

WOOLFOLK  &  TOOLE,  for  appellant, 

The  court,  instead  of  quashing  the  alias  summons,  should 
have  continued  the  case,  and  given  the  proper  time  to  plead. 
The  court  had  no  authority  to  set  aside  a  final  judgment,  on 
motion,  at  a  term  of  court,  after  such  judgment  was  ren- 
dered, when  the  records  show  that  there  was  personal,  but 
insufficient  service.  Wilson  v.  Cleaveland,  30  Cal.  192; 
Suydam  v.  Pitcher.  4  id.  280  ;  Castro  v.  Richardson,  25 
id.  49  ;  Willson  v.  McEnoy.  25  id.  169  ;  Lattimer  v.  Ryan, 
20  id.  628  :  Shaw  v.  McGref/or,  8  id.  521. 

The  pica  in  abatement,  filed  in  open  court,  was  a  waiver 
of  service.  A  party  may  appear  in  person,  or  by  attorney, 
without  service  of  summons.  Acts  1867,  138,  §  22;  Suy- 
dam  v.  Pitcher,  4  Cal.  280  ;  Adams  v.  Gilbert,  9  Wend. 
499  ;  Sterne  v.  Bentley,  3  How.  Pr.  331  ;  Hunter  v.  Lester, 
18  id.  347. 


102  KLEINSCHMIDT  -c.  MOKSE.  [Dec.  T., 

After  respondent  appeared  and  filed  his  stipulation,  with- 
drawing all  pleas  and  defenses,  the  court  exercised  its  ju- 
dicial discretion  in  rendering  a  judgment.  This  can  only 
be  reversed  on  appeal,  or  set  aside  on  motion  and  proper 
showing  of  merits  at  proper  time.  The  authority  of  an 
attorney  of  record  is  always  presumed,  when  he  appears  as 
such,  and  lie  may  suffer  or  confess  judgment  for  his  client. 
Foster  \.  Wood,  30  How.  Pr.  285  ;  Denton  v.  Noyes,  6 
Johns.  301  ;  Blodgct  v.  Conklm,  9  How.  444. 

Other  rights  have  intervened  and  attached  upon  this 
judgment.  If  respondent  had  made  proper  showing  of 
merits  at  the  proper  time,  the  court  should  have  ordered 
the  judgment  to  stand,  subject  to  those  rights,  and  respond- 
ent should  have  been  permitted  to  answer  and  defend. 
Stern*-  \.  Bentletj.  :j  How.  Pr.  331  ;  Hallett  v.  Rigliters,  13 
id.  43. 

This  court  should  make  such  order  in  the  premises  as 
should  have  been  made  in  the  court  below.  While  it  de- 
volved on  respondent  to  show  a  meritorious  defense,  in 
order  to  set  aside  the  judgment,  appellant  shows,  by  affi- 
davits hied,  that  there  is  no  such  defense. 

CHI  M.YSERO  &  CHADWICK  and  G.  MAY,  for  respondent. 
(Xo  brief  on  file.) 

KXOWLKS.  J.  This  cause  comes  to  this  court  on  appeal 
from  an  order  of  the  court  below,  vacating  and  declaring 
null  and  void  a  judgment  of  that  court. 

It  appears  that  at  the  time  of  filing  the  complaint  in  this 
action  a  summons  was  issued.  This  was  quashed  by  order 
of  court  for  a  defective  service.  Afterward  the  plaintiff 
filed  an  amended  complaint,  and  had  an  alias  summons 
issued.  The  plaintiff',  in  the  mean  time,  had  filed  his  affi- 
davit for  a  writ  of  attachment,  to  issue  against  the  property 
of  respondent.  The  respondent  appeared  in  the  action,  and 
tiled  his  plea  in  abatement.  The  court  sustained  the  plea, 
and  quashed  the  attachment  proceeding.  The  counsel  for 


1868.]  KLEINSCHMIDT  v.  MORSE.  108 

the  respondent  then  gave  the  appellant  the  following  stipu- 
lation, to  wit : 


Theodore  H.  Kleinschmidt,  plaintiff, 

agt. 

Benajah   Morse,  surviving  partner  of   V 
the  late  firm  of  E.  and  B.  Morse,  de-  { 
fendant. 

In  the  Territorial  District  Court,  Third  Judicial  Dis- 
trict, Lewis  and  Clarke  County,  M.  T. : 

The  undersigned  attorneys  for  the  above-named  defend- 
ant hereby  consent  and  agree  to  withdraw  all  pleas  and 
defenses  in  the  above  cause,  and  will  interpose  no  objections 
To  the  taking  of  judgment  in  said  cause. 

Witness  our  hands  this  12th  day  of  March,  A.  D.  1868. 

WILLIAM  CHUMASERO, 
Attest :  GEORGE  MAY. 

.1.  H.  SHOBER. 

This  stipulation  was  filed  in  the  action,  and  counsel  for 
appellant  moved  for  judgment,  which  was  duly  entered  at 
the  next  term.  Afterward  the  counsel  for  respondent  moved 
to  set  this  judgment  aside,  and  to  declare  the  same  null  and 
void,  for  the  reasons  set  forth  in  the  following  motion  : 

•  'And  now  comes  the  defendant  by  his  attorneys,  William 
(Jhumasero  and  George  May,  and  moves  the  court  to  annul 
and  vacate  the  judgment  entered  at  the  last  term  of  this 
court,  in  behalf  of  plaintiff  against  defendant,  for  reasons, 
i .  That  the  inspection  of  the  records  in  said  case  shows  an 
order  quashing  the  summons  and  return  in  said  case ;  2. 
That  the  inspection  of  the  records  shows  that  there  was  no 
service  of  summons  upon  defendant,  other  than  the  one 
quashed,  and  therefore  defendant  could  not  be  in  default, 
and  therefore  that  said  judgment  was  improperly  entered  ; 
3  That  the  stipulation  on  file  in  this  case,  signed  by  the 
attorneys,  did  not  authorize  and  justify  the  judgment 
entered  in  said  case." 

WILLIAM  CHUMASERO, 

GEORGE  MAY, 

Attorneys  for  Defendant. 


104  KLEINSCHMIDT  v.  MORSE.  [Dec.  T. 

The  court  sustained  this  motion,  and  vacated  the  judg- 
ment entered  for  the  appellant.  This  was  done  at  a  term 
subsequent  to  the  one  at  which  the  judgment  was  entered. 
We  have  been  thus  particular  in  setting  forth  the  facts,  that 
it  may  be  seen  upon  what  the  court  below  based  its  action. 

The  twenty-second  section  of  the  civil  practice  act  of  this 
Territory  provides  as  follows  : 

"  That,  after  the  filing  of  the  complaint,  a  defendant  in  the 
action  may  appear,  answer  or  demur,  whether  the  summons 
has  been  issued  or  not ;  and  such  appearance,  answer  or 
demurrer  shall  be  deemed  a  waiver  of  summons." 

The  first  question  presented  to  the  court  is,  did  the  de- 
fendant appear  generally  in  the  action  ?  If  he  did,  he 
waived  any  summons  to  appear.  What  is  a  general  appear- 
ance in  an  action  ?  A  party  coming  into  court  in  an  action 
without  limiting  the  object  for  which  he  comes  in.  The 
signing  of  such  a  stipulation  as  the  one  filed  in  this  cause 
by  defendant's  attorney,  has  ever  been  considered  a  general 
appearance  in  a  cause.  The  respondent  then,  as  to  this 
action,  was  in  court,  and  if  he  had  failed  to  file  a  plea  to 
the  merits  of  the  cause,  the  appellant  was  entitled  to  judg- 
ment if  he  claimed  it.  He  asked  for  judgment,  and  the 
court  properly  awarded  it. 

We  feel  impelled  to  say  one  thing  further  in  this  cause. 
How  was  that  stipulation  considered  by  the  attorneys  for 
the  appellant,  and  how  did  the  attorneys  for  respondent 
have  reason  to  suppose  that  the  attorneys  for  the  appellant 
regarded  it  \  That  it  was  an  agreement  by  the  defendant, 
Benajah  Morse,  that  the  plaintiff  might  have  judgment  for 
the  amount  he  claimed.  To  give  it  any  other  effect  would 
be  to  violate  what  was  the  manifest  intention  of  the  parties 
who  gave  it,  the  understanding  of  its  effect  by  the  parties 
who  received  it,  and  to  recognize  and  encourage  a  system 
of  sharp  practice  not  to  be  tolerated  in  any  dignified  and 
upright  court. 

The  order  of  the  court  below  is,  therefore,  reversed  and 
the  cause  remanded. 

Exceptions  sustained. 

WARREN,  C.  J.,  concurred. 


1868.]  GODBE  V.  McCoBMiOK.  106 


GODBE,  respondent,  v.  McCoRMiCK,  appellant. 

VHNUB  —  application  for  change.  The  act  of  the  legislature,  regulating  the 
place  of  trial  in  certain  cases,  approved  December  6,  1867,  gives  a  party  the 
right  to  apply  for  a  change  of  the  venue  of  his  case  before  the  trial  actu- 
ally begins,  although  such  application  has  been  made  and  denied  at  the 
same  term  before  the  passage  of  this  act. 

STATUTORY  CONSTRUCTION  —  venue  act — jurisdiction.  This  act,  approved  De- 
cember 6,  1867,  affects  the  mode  of  procedure,  but  does  not  divest  the  dis- 
trict courts  of  the  common-law  jurisdiction  conferred  upon  them  by  the 
organic  act  of  this  Territory. 

IDEM  —  validity  of  the  venue  statute.  This  act,  approved  December  6,  1867,  is 
upon  a  rightful  subject  of  legislation  and  valid. 

V»NUE —  when  changed  —  discretion  of  court.  The  application  for  the  change 
of  the  venue  in  this  action  was  not  addressed  to  the  discretion  of  the  court 
below.  The  statute  is  imperative  and  the  application  should  have  been 
granted  upon  the  payment  of  the  costs. 

VENUE  —  effect  of  denying  application.  If  a  court  erroneously  denies  a  motion 
to  change  the  place  of  trial,  the  subsequent  proceedings  in  the  case  are 
void. 

Appeal  from  tTie  First  District,  Madison  County. 

Tins  action  was  brought  by  Godbe  in  October,  1866,  in 
the  county  of  Edgerton  (now  Lewis  and  Clarke),  to  recover 
the  amount  due  on  a  contract  executed  May  31,  1866,  by 
Godbe  and  McCormick.  The  place  of  trial  was  afterwai  d 
changed  to  the  county  of  Madison.  On  December  2,  1867, 
during  a  term  of  the  district  court,  the  defendant  filed  a 
motion  for  a  change  of  the  venue  of  the  action.  The  motion 
was  overruled.  On  December  6,  1867,  an  act  was  passed 
by  the  legislature  of  the  Territory,  which  contained  the  fol- 
lowing clauses:  "That  when  an  affidavit  is  made  by  any 
party  to  said  action  or  proceeding,  or  by  his  or  their  attor- 
ney, that  the  party  making  the  application,  and  on  whose 
behalf  the  affidavit  is  made,  cannot  have  a  fair  and  impar 
tial  trial  in  said  action  by  reason  of  the  bias  or  prejudice  of 
the  judge  before  whom  said  action  is  then  pending,  such 
judge  shall,  and  it  is  hereby  made  his  duty  to  immediately 
order  said  action  to  be  transferred  to  some  other  county  in 
paid  Territory,  outside  of  his  judicial  district,  on  payment 
of  the  costs  that  have  accrued  in  said  cause  in  said  court, 
up  to  the  time  of  making  such  application."  "This  act 

VOL.  I.  —  14. 


106  GrODBE  v.  McCoEMioK.  [Dec.  T., 

shall  apply  to  all  actions  now  pending  or  that  may  here- 
after be  brought  in  the  Territory  of  Montana,  and  shall  be 
in  force  from  and  after  its  passage." 

On  December  7,  1867,  the  defendant  made  the  same  mo- 
tion for  a  change  of  venue  which  had  been  filed  on  Decem- 
ber 2,  1867,  and  accompanied  it  with  an  affidavit  that  he 
could  not  have  a  fair  and  impartial  trial  by  reason  of  the 
bias  and  prejudice  of  Hon.  H.  L.  HOSMER,  the  judge  before 
whom  the  action  was  then  pending.  The  plaintiff  then  filed 
a  motion  to  strike  this  application  from  the  files.  The 
court,  HOSMEB,  J.,  sustained  the  motion  and  defendant 
excepted. 

The  cause  was  then  tried  by  a  jury,  who  rendered  a  ver- 
dict for  plaintiff  for  $9,744.  During  the  trial  the  defendant 
saved  other  exceptions  which  were  not  reviewed  by  the 
court,  and  are  therefore  omitted,  together  with  the  argu- 
ments of  counsel  thereon. 

CHUMASERO  &  CHAD  WICK  and  DAVIS  &  THOROUGHMAN, 

for  appellant. 

The  court  erred  in  overruling  the  motion  of  appellant  to 
change  the  venue  in  said  action,  made  after  the  passage  of 
the  act  of  the  legislature,  regulating  proceedings  in  civil 
causes,  approved  December  6,  1867,  and  before  the  repeal 
thereof.  Acts  1867,  68  ;  Smith  v.  Judge,  17  Cal.  547 ;  5  N. 
Y.  Dig.  84,  §§  85  and  94 ;  Sedgw.  Stat.  and  Const.  L.  5,  6, 
10,  11,  13,  34,  183,  184,  187  and  204  ;  Acts  1865,  24,  §  21 ; 
Organic  Act,  §  6  ;  Fletcher  v.  PecJc,  6  C ranch,  87. 

W.  F.  SAISTDERS,  for  respondent. 

The  motion  for  a  change  of  venue  was  made  too  late.  It 
was  the  second  motion  for  the  same  purpose  at  the  same 
term.  Defendant  had  once  made  this  motion  and  saved  his 
exception  to  the  ruling  thereon.  The  second  motion  was 
improper. 

The  act  of  the  legislature,  approved  December  6,  1867,  is 
void.  It  deprives  the  district  court  of  its  common-law  juris- 
diction and  seeks  to  make  the  judge  a  ministerial,  not  a 
judicial  officer.  The  interference  of  the  legislature  in  pend- 


1868.]  GODBE  t>.  McOoKMiCK.  107 

ing  cases  is  a  vicious  practice.  This  act  remained  in  force 
seventeen  days.  The  motion  was  filed  after  the  case  was 
set  for  trial.  After  parties  announce  themselves  ready  for 
trial,  the  motion  is  too  late.  The  statute  is  a  wrongful  inter- 
ference with  judicial  discretion.  Organic  Act,  §  9  ;  2  Tom- 
linson  Law,  D.  298. 

If  appellant  made  this  affidavit  in  every  district,  respond- 
ent would  be  remediless,  although  Organic  Act  gives  him  a 
remedy.  The  act  was  not  upon  a  rightful  subject  of  legis- 
lation. 

WARREN,  C.  J.  The  record  in  this  case  is  somewhat 
voluminous,  but  it  is  unnecessary  to  notice  all  the  errors 
assigned. 

The  appellant  has  preserved  in  the  record  his  exception 
to  the  order  of  the  court  below,  striking  from  the  tiles  the 
application  for  a  change  of  the  venue  of  the  cause  made  by 
appellant  on  December  7,  1867. 

The  grounds  upon  which  respondent's  motion  to  strike 
this  application  from  the  files  was  based,  were :  1.  That  a 
former  motion  for  the  same  purpose  had  been  filed  and  over 
ruled  ;  and.  2.  That  the  latter  application  was  not  made 
until  the  cause  had  been  set  for  trial.  It  is  to  be  presumed 
that  these  were  the  reasons  which  controlled  the  court  in 
sustaining  the  motion  of  respondent. 

The  latter  application  was  made  by  appellant  under  the 
provisions  of  an  act  of  the  territorial  legislative  assembly, 
which  was  approved  on  December  6,  1867.  The  fonnei 
motion  for  change  of  the  venue  was  made  under  the  law 
previously  in  force,  and  was  addressed  to  the  discretion  of 
the  court,  and  no  error  is  assigned  in  overruling  it.  The 
appellant  was  entitled  to  the  benefit  of  the  change  in  the  law, 
made  on  December  6th,  subsequent  to  the  order  overruling 
his  first  motion. 

The  fact  that  the  application  was  not  made  until  the  cause 
had  been  set  for  trial  did  not  justify  disregard  of  the  law, 
which  does  not  designate  the  time  during  the  progress  of 
:u\  action  or  proceeding  at  which  the  application  should  b« 


108  GODBE  v.  McCoRMicK.  [Dec.  T.. 

made ;  and,  consequently,  it  might  properly  be  made  at  any 
time  before  the  trial  actually  commenced. 

This  brings  us  to  a  consideration  of  the  question  raised 
by  respondent,  as  to  the  validity  of  the  act  of  December 
6,  1867. 

It  is  argued  that  this  act  was  void,  for  the  reason  assumed 
that  it  attempted  to  divest  the  district  court  of  jurisdiction 
of  a  case  at  common  law,  over  which  it  had  jurisdiction,  by 
virtue  of  the  organic  act  of  this  Territory. 

By  the  organic  act  the  judicial  power  of  the  Territory  is 
vested  in  certain  courts,  and  it  is  ordained,  that  the  juris- 
diction of  the  several  courts  thereby  established  "shall  be 
limited  by  law,"  provided,  that  the  "district  courts  respect- 
ively shall  possess  chancery  as  well  as  common-law  juris- 
diction." The  legislative  power  is  vested  in  the  governor 
and  legislative  assembly,  and  the  legislative  power  extends 
to  "all  rightful  subjects  of  legislation,  consistent  with  the 
Constitution  of  the  United  States"  and  the  provisions  of 
• '  the  organic  act.' ' 

The  questions  involved  here  are  whether  the  act  of  the 
legislative  assembly  of  December  6th,  in  terms  or  in  sub- 
stance, divested  the  district  courts  of  the  common  law 
jurisdiction  they  possessed  by  virtue  of  the  act  of  congress  : 
and,  secondly,  whether  the  subject  embraced  was  one  of 
rightful  legislation  within  the  scope  of  the  legislative  power. 
So  far  as  the  first  question  is  concerned,  we  do  not  regard 
the  act  of  the  legislature  as  affecting  the  jurisdiction  of  the 
district  court.  It  lays  down  a  rule  of  procedure,  in  certain 
cases,  for  the  observance  of  the  courts  in  the  exercise  of 
their  jurisdiction,  of  the  same  character  as  the  laws  regu- 
lating continuances,  appeals,  new  trials,  and  the  entire  sub 
ject  of  remedies  and  of  practice.  In  the  respect  that  it  is 
mandatory  upon  the  courts,  it  differs  from  our  idea  of  wise 
legislation,  and  the  fact  that  the  law  was  so  soon  repealed 
would  seem  to  indicate  that  the  legislature  itself  became 
convinced  that  in  such  cases  a  sound  discretion  should  bo 
left  to  the  courts  ;  but,  with  the  wisdom  and  policy  of  legis- 
lation, the  courts  have  nothing  to  do.  Refusal  to  recognize 


1868.]  GODBE  c.  McCoKMicK.  10ft 

and  obey  a  law  upon  the  ground  of  judicial  disapproval  of 
its  policy,  would  be  at  once  to  place  courts  above  the  law, 
instead  of  remaining  its  ministers  and  expounders.  That 
courts  should  iirmly  maintain  their  legitimate  powers  against 
legislative  aggression,  as  is  ably  urged  by  the  attorney  of 
the  appellee,  we  believe. 

A  division  of  the  powers  of  government  among  three 
co  ordinate  departments,  as  in  the  federal  constitution,  the 
several  State  constitutions,  and  in  our  own  organic  act,  is 
most  wise  and  salutary,  and  that  each  branch  should  be 
restricted  within  its  particular  sphere  of  action,  is  a  truism, 
but  to  determine  the  precise  boundary  between  the  several 
departments  is  sometimes  attended  with  great  difficulty. 
The  mere  fact  that  a  law  requires  the  performance  by  a 
court  of  a  particular  act,  upon  a  given  state  of  fact,  is  not 
a  sufficient  test  by  which  to  determine  its  invalidity,  and  in 
many  instances  the  legislature  may  deprive  the  court  of 
discretion  in  the  exercise  of  its  jurisdiction.  To  find  limi- 
tations upon  the  legislative  power  we  must  look  to  the 
constitution  and  acts  of  congress,  and,  looking  to  these,  we 
are  unable  to  find  any  provision  that  was  violated  by  the 
act  of  December  6th,  or  to  say  that  it  was  not  upon  a  sub- 
ject of  rightful  legislation.  It  is  also  insisted  that  the  court 
properly  struck  respondent's  application  from  the  files,  for 
v,he  reason  that  the  costs  which  had  accrued  in  the  cause 
p.:*vious  to  the  application  were  not  paid  or  tendered  by 
"I-  appellant.  This  was  not  one  of  the  grounds  assigned 
oy  respondent  in  his  motion,  and  is  untenable.  The  order 
Changing  the  place  of  trial  should  have  been  made  upon 
Condition  of  payment  of  the  costs.  We  are  of  opinion  that 
the  court  below  erred  in  striking  the  appellant's  application 
from  the  files.  The  appeal  is  from  the  final  judgment  ren- 
dered in  the  case,  but,  regarding  this  error  as  material,  and 
affecting  the  judgment,  we  do  not  think  it  proper  to  discuss 
the  subsequent  questions  involved  in  this  record.  We  may 
say  that  we  are  unable  to  discover  in  the  record  evidences 
of  the  bias  or  partiality  alleged  in  appellant's  affidavit,  but 
the  statute,  being  imperative,  should  have  been  obeyed,  and 


110  CTODBE  c.  McCoKMiCK.      [Dec.  T.,  1868.] 

the  proceedings  subsequent  to  December  7th,  in  the  cause, 
were  unwarranted  by  the  law.  We  cannot  forbear  remark 
ing,  in  conclusion,  that  much  of  the  difficulty  arising  in 
this  case  sprang  from  the  loose  and  ambiguous  pleading  on 
the  part  of  the  appellant.  Under  our  system  of  practice, 
the  tendency  is  toward  indefinite  ness  in  the  formation  of 
issues  of  fact,  and  the  rules  of  pleading  as  established  can- 
not be  too  strictly  enforced. 
The  judgment  is  set  aside  and  the  cause  remanded  to  the 

court  below. 

Exception  sustained. 


ARGUED    AND    DETERMINED 


SUPREME   COURT 


AUGUST   TERM,    1869,    HELD    IN   VIRGINIA    CITY, 


Present : 

HON.  HENRY  L.  WARREN,  CHIEF  JUSTIOB. 
HON.  HIRAM  KNOWLES,     ) 
HON.  GEORGE  G.  SYMES,   )  J01 


CARUTHERS  et  a].,  appellants,   t>.   PEMBERTON  et  al..   re- 
spondents. 

PLEADING — reply  required  if  answer  prays  for  relief.  An  answer  which  con- 
tains new  matter  in  avoidance  needs  no  reply  under  the  statutes  of  this 
Territory,  unless  it  states  facts  that  entitle  the  defendant  to  affirmative 
relief. 

WATER-RIGHTS  —  cajMcit;/  of  ilitch.  The  measure  of  the  plaintiffs'  right  tt: 
water  in  controversy  in  this  case  is  the  number  of  inches  that  their  ditch 
would  convey  from  the  point  of  diversion  without  running  over  its  banks 

PRACTICE — ir/icn  jada/in  nt  is  not  n'rinrrd.  This  court  will  not  review  a  judjr 
ment  when  it  appears  from  the  whole  record  that  justice  has  been  done. 

PRACTICE  —  new  trial — iu'tcly-dincovered  i-vidfnct: —  affidavits.  A  new  trial  will 
not  be  granted  on  the  mMinnl  of  newly-discovere-d  evidence,  if  the  affida- 
vits do  not  »liow  \v!i;if  ililiirenei'  \vas  usi'd  to  obtain  it,  nnd  the  i^vidence  *t 


112  CARUTHERS  v.  PEMBERTON.  [Aug.  T., 

Appeal  from  the  Second  District,  Deer  Lodge  County. 

THIS  action  was  commenced  in  the  district  court  in 
November,  1868,  by  Caruthers  and  others  against  Pember- 
ton  and  others.  The  plaintiffs  owned  a  water-ditch,  known 
as  the  De  Long  ditch,  which  diverted  the  waters  of  Gold 
creek  in  Deer  Lodge  county  prior  to  September  1,  1868. 
The  defendants,  who  then  did  business  in  said  county  under 
the  name  and  style  of  the  Pioneer  Ditch  Company,  owned 
a  ditch,  known  as  the  Pioneer  ditch,  which  diverted  the 
waters  of  Gold  creek  about  two  miles  above  the  head  of  the 
De  Long  ditch.  The  plaintiffs  claimed  that  they  were  enti- 
tled by  prior  appropriation  to  the  use  of  two  hundred  and 
fifty  inches  of  water  in  the  De  Long  ditch  ;  and  that  the 
defendants,  about  September  1,  1868,  wrongfully  diverted 
the  same  and  prevented  it  from  flowing  in  their  ditch.  The 
prayer  of  the  complaint  was  for  a  perpetual  injunction 
restraining  the  defendants  from  diverting  the  water,  and 
$3,000  damages.  The  answer  alleged  that  the  capacity  of 
the  De  Long  ditch  to  convey  water  was  no  more  than  one 
hundred  inches  according  to  miners'  measurement ;  and 
that  plaintiffs  had  always  enjoyed  the  use  of  that  amount 
since  the  construction  of  their  ditch.  No  replication  was 
filed  by  the  plaintiffs. 

The  case  was  tried  at  the  November  term,  1868,  and  the 
jury  returned  a  general  verdict  for  defendants  and  also 
special  findings.  The  court,  KNOWLES,  J.,  denied  the 
plaintiffs'  motion  for  a  new  trial  and  they  appealed. 

The  other  facts  appear  in  the  opinion. 

J.  C.  ROBINSON,  for  appellants. 

No  replication  is  required  under  our  statute.  The  court 
below  erred  in  instructing  the  jury  "that  it  was  confessed 
by  the  plaintiffs  in  the  pleadings  that  the  appellants  had 
had  at  all  times  as  much  as  one  hundred  inches  of  water." 
Acts  1867,  141,  §  38 ;  144,  §§  50,  65  ;  Bridges  v.  Paige, 
13  Cal.  640  ;  Piercy  v.  Sabin,  10  id.  22 ;  Her  old  v.  Smith, 
34  id.  122:  Voorhies,  N.  Y.  Code,  §  153. 


1869.]  CAIIUTIIERS  v.  PEMBEKTON.  113 

The  jury  should  have  passed  upon  any  portion  of  the  one 
hundred  inches  of  appellants'  water  that  was  diverted  by 
respondents.  The  court  erred  in  giving  the  other  instruc- 
tions and  admitting  certain  testimony.  Norwood  v.  Kenfield, 
30  Cal.  400  ;  Lolly  v.  Wise,  28  id.  540. 

The  showing  of  newly-discovered  evidence  is  sufficient  to 
entitle  the  appellants  to  a  new  trial- 

The  evidence  was  insufficient  to  support  the  findings  and 
verdict  of  the  jury.  Smith  v.  Atherton,  34  Cal.  506 ;  Hill 
v.  Smith,  82  id.  167  ;  Franklin  v.  Dorland,  28  id.  175. 

CLAGETT  &  DIXON,  for  respondents. 

The  affidavits  for  new  trial  do  not  show  surprise  or  dili- 
gence. They  do  not  come  within  the  statute.  Prac.  Act, 
§§  193  and  194.  The  evidence  which  they  contain  is  cumu- 
lative. This  is  no  ground  for  a  new  trial.  1  Gr.  &  W.  New 
Trials,  486  ;  3  id.  1016,  1048. 

The  statement  shows  the  weight  of  evidence  is  in  favor 
of  respondents.  A  new  trial  will  not  be  granted,  if  there  is 
a  conflict  of  evidence,  or  any  evidence  to  support  the  ver- 
dict. 1  Gr.  &  W.  New  Trials,  380 ;  Kile  v.  Tubbs,  32  Cal. 
333 ;  3  Gr.  &  W.  New  Trials,  1239. 

The  instructions  are  correct,  and  are  more  favorable  to 
appellants  than  respondents.  The  special  findings  covered 
all  the  issues. 

Evidence  was  properly  admitted  to  show  that  part  of  the 
water  in  plaintiffs'  ditch  came  from  Pioneer  gulch,  and  that 
the  lower  portion  of  their  ditch  was  larger  than  the  upper. 
The  instructions  did  riot  mislead  the  jury  or  prejudice  the 
plaintiffs.  A  new  trial  will  not  be  granted  if  the  complain- 
ing party  could  not  be  injured  by  the  instructions  ;  nor  if 
justice  has  been  done.  Tompkins  v.  Malwney,  32  Cal.  231 ; 
1  Gr.  &  W.  New  Trials,  301  ;  3  id.  862,  867,  868. 

SYMES,  J.  This  was  an  action  brought  by  plaintiff's  for 
damages  for  the  diversion  of  water  by  the  defendants, 
which  the  plaintiffs  claimed  by  prior  appropriation  for 
mining  purposes,  tried  at  November  term  of  the  district 
court,  1868.  Verdict  and  judgment  for  defendants. 
VOL.  L— 15. 


114  CARUTHERS  c.  PEMBERTON.  [Aug.  T.T 

The  complaint  alleges  in  substance  that  plaintiffs  on  and 
prior  to  September  1,  1868,  owned  and  possessed  a  water- 
ditch,  of  the  capacity  of  two  hundred  and  fifty  inches, 
miners'  measurement,  in  Deer  Lodge  county,  Montana  Ter- 
ritory. It  being  an  artificial  water-ditch  for  diverting  the 
waters  of  Gold  creek,  and  known  as  the  De  Long  ditch,  and 
claimed  by  prior  appropriation,  waters  of  said  creek,  con- 
veyed by  said  ditch  to  amount  of  two  hundred  and  fif\y 
inches.  That  on  1st  of  September,  1868,  defendants  wrong- 
fully and  unlawfully  diverted  the  waters  of  said  Gold  creek 
and  prevented  same  from  flowing  down  plaintiffs'  ditch, 
thereby  damaging  plaintiffs  $3,000.  for  which  they  sue. 

Defendants'  answer  admits  plaintiffs'  possession  of  said 
ditch  ;  denies  that  ditch  was  of  the  capacity  of  two  hun- 
dred and  fifty  inches,  and  alleges  that  at  the  time  of  appro- 
priation ditch  would  convey  one  hundred  inches  and  no 
more,  and  denies  the  diversion  of  any  water  belonging  to 
plaintiffs.  Answer  further  alleges  that  in  August,  1866. 
defendants  and  those  under  whom  they  claim  appropriated 
all  the  waters  of  said  Gold  creek  then  unappropriated,  and 
constructed  a  ditch  to  convey  same  to  Pioneer  gulch,  which 
ditch  was  of  the  capacity  to  convey  six  hundred  inches, 
more  or  less,  and  known  as  Pioneer  ditch,  and  takes  the 
waters  of  said  Gold  creek  about  two  miles  above  the  head 
of  said  De  Long  ditch  ;  that  when  Pioneer  ditch  was  con- 
structed De  Long  ditch  would  convey  one  hundred  inches 
of  water  from  said  Gold  creek  and  no  more  ;  that  defend- 
ants were  entitled  to  all  the  waters  of  said  creek  except  on<- 
hundred  inches,  and  had  always  allowed  one  hundred 
inches  to  flow  down  said  De  Long  ditch  without  diversion. 
This  case  came  up  on  order  overruling  motion  for  new  trial, 
and  errors  and  exceptions  stated  in  the  statement  for  same 
as  follows  : 

1.  On  the  trial  defendants  ask  plaintiffs'  witness,  if  he 
did  not  in  fall  of  1866,  when  mining  in  Pike's  Peak  gulch, 
convey  water  from  Pioneer  gulch  to  where  he  was  mining  '. 
which  was  objected  to  by  plaintiffs  as  irrelevant,  overruled 
and  exceptions.  2.  Plaintiffs'  witness.  Cook,  testified  that  tlie 


1 809.  j  ( ~j  ART TII  KKS  /*.  PEM BEIITON .  115 

capacity  of  plaintiffs'  ditch  was  about  one  hundred  and 
fifty  inches.  He  thought  so  from  amount  of  water  flowing 
in  Sharp  and  Williams  &  Co.'s  bed-rock  flume  and  amount 
they  were  compelled  to  use.  On  cross-examination,  defend- 
ants asked  witness  if  part  of  water  in  flume  did  not  come  out 
of  Pioneer  gulch?  Objected  to  by  plaintiffs  as  irrelevant. 
Overruled,  and  witness  answered,  it  did.  3.  Defendants 
asked  their  witness  if  part  of  the  water  which  came  through 
De  Long  ditch  in  1866  to  mines  came  from  Pioneer  gulch  \ 
Objected  to  by  plaintiffs  as  irrelevant.  Overruled,  and  wit- 
ness answered,  it  did.  If  plaintiffs'  witnesses  formed  the 
judgment  of  the  capacity  of  plaintiffs'  ditch  by  the  amount 
of  water  flowing  into  a  flume  some  distance  below  head  of 
ditch  or  into  some  mine,  it  was  certainly  relevant  for  de- 
fendants  to  cross  examine  plaintiffs'  witnesses,  or  show  by 
their  own  witnesses,  that  portion  of  the  water  in  the  flume 
or  flowing  into  the  mines  came  into  flume,  mines  or  De  Long 
ditch,  below  where  said  ditch  took  the  water  from  said  Gold 
creek.  It  might  weaken  their  judgment  or  show  that  they 
knew  nothing  of  the  amount  of  water  said  ditch  took  from 
said  Gold  creek. 

Plaintiffs  excepted  to  the  court  instructing  the  jury  that 
plaintiffs  admitted  in  their  pleading  that  defendants  had 
always  permitted  one  hundred  inches  of  water  to  flow  down 
said  Gold  creek  to  said  De  Long  ditch,  because  alleged  in 
answer  and  no  replication  being  filed  by  plaintiffs.  The  court 
erred  in  this  instruction.  Section  38.  Civil  Code,  provides 
that  the  only  pleadings  on  the  part  of  the  plaintiff  shall  be 
complaint,  demurrer  or  replication  to  defendant's  answer, 
and  on  the  part  of  defendant  shall  be  demurrer  to  complaint, 
or  replication  or  answer  to  the  complaint.  Section  50  pro- 
"ides  that  where  the  answer  contains  new  matter  plaintiff 
may  demur  or  move  to  strike  out  sham  and  irrelevant  an- 
swers, or  such  part  thereof  as  may  be  irrelevant,  immate- 
rial, etc.  Section  65  provides  that  any  material  allegation 
'•f  the  complaint  or  cross-complaint,  not  controverted  by 
the  answer,  shall,  for  the  purposes  of  the  action,  be  taken 
as  true,  and  that  the  statement  of  matters  in  avoidance 


116  CARUTHERS  v.  PEMBERTON.  [Aug.  T., 

shall,  on  the  trial,  be  deemed  controverted  by  the  adverse 
party.  Distinct  sections  of  the  Code  prescribe  what  the 
complaint  shall  contain  ;  also  the  answer.  But  unlike  most 
codes  of  the  different  States,  there  is  in  ours  no  section  ex- 
cept those  referred  to  which  treats  of  a  replication  or  form 
which  we  can  deduce  when  it  is  necessary  or  what  it  should 
contain.  Section  38  prescribes  there  shall  be  such  a  plead- 
ing as  a  replication,  but  no  section  states  when  it  shall  be 
necessary.  Section  50  states  that  when  answer  contains 
new  matter  plaintiif  may  demur,  move  to  strike,  etc.,  but 
does  not  say  he  may  reply.  Section  65  states  that  material 
allegations  in  complaint  or  cross-complaint,  not  contro- 
verted, shall  be  taken  as  true.  And  that  matter  in  avoid- 
ance in  the  answer  shall  be  deemed  controverted,  thereby  it 
seems  to  us  saying  that  new  matter  in  avoidance  may  not 
be  controverted  by  a  reply.  In  referring  to  the  New  York 
code  we  find  the  provisions  as  to  the  answer  similar  to  ours> 
but  a  distinct  section  provides  that  a  reply  shall  be  neces- 
sary when  the  answer  sets  up  new  matter  containing  a  coun- 
ter-claim, and  the  decisions  allow  a  reply  only  when  matter 
is  in  the  answer  which  entitles  the  defendant  to  affirmative 
relief  against  the  plaintiff,  or  facts  which  would  be  suffi- 
cient to  constitute  a  cause  of  action  against  the  plaintiff. 
Van  Plead,  616,  620,  and  cases  there  cited.  The  California 
code,  before  amendment,  was  the  same  as  ours,  and  al- 
though the  decisions  on  this  question  are  not  at  present 
within  reach  of  the  court,  it  seems  a  reply  was  held  neces- 
sary only  when  the  new  matter  in  the  answer  entitled  the 
defendants  to  affirmative  relief.  The  answer  in  this  case  con- 
tained no  new  matter  constituting  a  counter-claim,  or  enti- 
tling the  defendants  to  affirmative  relief,  and  no  replication 
was  necessary.  But,  on  examination  of  the  statement  of 
evidence,  it  seems  to  preponderate  in  favor  of  the  conclu- 
sion that  the  defendants  always  did  allow  one  hundred 
inches  to  flow  down  to  the  De  Long  ditch  ;  and  the  special 
findings  of  the  jury  show  they  so  conclude.  The  plaintiffs' 
rights,  therefore,  were  not  prejudiced  by  this  instruction. 
Plaintiffs  also  rely  on  exceptions  taken  to  the  refusal  of 


1869.]  CARUTHERS  ?).  PEMBKBTON.  117 

instructions  offered  by  them,  giving  instructions  offered 
by  defendants,  instructions  given  by  court  and  special 
finding,  submitted  by  the  court  to  the  jury.  That  evidence 
is  insufficient  to  support  verdict,  newly-discovered  evidence 
entitling  defendants  to  new  trial,  and  order  overruling  mo- 
tion for  same. 

Several  instructions  were  asked  by  plaintiffs  and  refused ; 
some  asked  by  defendants  and  given,  and  several  given  by 
the  court.  Upon  examining  the  instructions  it  is  not  seen 
how  the  jury  were  misled,  or  plaintiffs  prejudiced  by  the 
ruling  of  the  court,  except  it  be  in  giving  the  second  instruc- 
tion given  by  court  at  request  of  the  defendants,  which 
instructs  the  jury  that  the  measure  of  plaintiffs'  right  to 
water  was  the  number  of  inches  the  De  Long  ditch  would 
carry  through  to  the  place  where  it  is  to  be  used,  at  the  time 
of  defendants'  appropriation  in  the  fall  of  1866.  The  meas- 
ure of  plaintiffs'  right  would  be  the  amount  of  water  the 
said  ditch  would  convey  from  said  Gold  creek  without  run- 
ning over  its  banks,  and  not  the  number  of  inches  it  might 
convey  to  the  place  to  be  used,  some  miles,  perhaps,  dis- 
tant. In  running  some  distance  to  mines,  much  watei 
might  be  lost  by  evaporation  and  seepage,  depending 
on  season  of  the  year  and  state  of  the  weather ;  and  the 
amount  of  water  appropriated  could  only  be  estimated  by 
measuring  it  according  to  miners'  measurement,  near  the 
head  of  the  ditch,  when  it  was  full,  or  conveying  all  it  had 
capacity  to.  But,  as  the  jury  specially  find,  from  the  evi- 
dence, that  the  ditch  was  only  of  the  capacity  to  convey 
one  hundred  inches  to  a  claim  near  by  ;  and,  further,  that 
the  plaintiffs  appropriated  but  one  hundred  inches  of  water 
of  said  creek,  and  the  evidence  favors  the  findings,  the  jury 
were  not  misled  by  this  instruction.  Courts  will  not  dis- 
turb a  verdict  where  there  is  evidence  to  support  it,  or 
reverse  a  judgment  when,  from  the  whole  record,  justice 
appears  to  have  been  done.  The  affidavits  of  newly-dis- 
covered evidence  do  not  show  what  diligence,  or  that  any, 
was  used  to  obtain  it,  and  the  evidence  shown  is  cumulative. 

Exceptio  n  s  o  rerr  u  led. 


118  KLEINSCHMIDT  v.  DUNPHY.  [Aug.  T. 


KLEINSCHMLDT  et  al..  respondents,  v.  DUNPHY,  appellant. 

PAROL  EVIDENCE  OB1  WRITING  NOT  IN  EXISTENCE.  Parol  evidence  of  a  writing, 
the  existence  of  which  is  denied  by  one  of  the  parties  to  the  action,  is  ad- 
missible, if  the  court  is  satisfied  that  the  facts  constituting  a  foundation 
therefor  have  been  proved. 

DECLAKATIONS  or  ONE  PAKTY  MADE  ix  ABSENCE  OF  ANOTHER.  The  declara- 
tions of  parties  concerning  a  mortgage  executed  by  them  to  one  of  the 
defendants,  and  made  in  the  absence  of  this  defendant,  are  admissible,  if 
evidence  has  been  introduced  tending  to  show  collusion  between  the  parties 
respecting  the  instrument. 

DISTRICT  COURTS  —  not  federal  courts.  The  district  courts  of  this  Territory, 
created  by  congress,  are  not  federal  courts  contemplated  by  the  constitu- 
tion. 

STATUTE  AUTHORIZING  VERDICT  BY  THREE-FOURTHS  OF  JURY  VOID.  The  act 
of  the  legislature  of  Montana  which  provides  that  the  verdict  of  three- 
fourths  of  the  jurors  shall  have  the  same  effect  "as  if  agreed  upon  by  the 
whole  of  the  jurors,"  approved  January  15,  18G9,  is  unconstitutional  and 
void  in  actions  at  common  law,  iu  which  the  value  at  controversy  exceeds  S^O 

TRIAL  BY  JURY.  A  trial  by  jury  is  a  trial  by  a  tribunal  of  twelve  men,  acting 
only  with  unanimity. 

JURY  TRIALS  IN  EQUITY  CAUSES.  The  constitution  does  not  secure  the  right  ol 
trial  by  jury  in  causes  of  equity  jurisdiction,  and  the  legislature  of  this 
Territory  possesses  the  power  to  determine  the  number  of  jurors  that  can 
render  a  verdict  iu  the  trial  of  issues  of  fact  arising  in  such  causes. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

Ix  April,  1868,  Kleinschmidt  commenced  this  action  in 
behalf  of  himself  and  other  judgment  creditors  of  B.  Morse, 
surviving  partner  of  the  late  linn  of  E.  &  B.  Morse,  against 
said  B.  Morse  and  Dunphy,  in  the  district  court  in  Gallatm 
county.  The  complaint  alleged  that  Kleinschmidt  recov- 
ered a  judgment  against  said  Morse,  as  said  partner,  on 
March  12.  1868.  for  si 6.957.50  ;  that  an  execution  was  issued 
upon  said  judgment,  and  returned  by  the  sheriff  on  April 
2.  1868,  wholly  unsatisfied ;  that  said  judgment  had  not 
been  paidj  that  said  E.  &  B.  Morse,  on  October  31,  1867, 
executed  to  Dunphy  a  mortgage  upon  their  real  and  per- 
sonal property,  to  secure  the  payment  of  $30,000  :  that  tlu- 
property  was  \vorth  $70,000:  that  the  Morses,  at  the  time 
the  mortgage  was  executed,  were  indebted  to  their  creditors 
in  the  sum  of  $39.000  :  that  the  mortgage  was  made  with 
the  intent  to  hinder,  delay  and  defraud  their  creditors  by 


1869.]  KLEIN  SCUM  IDT  c.  DUNPHY.  119 

the  Morses,  who  continued  in  the  possession  of  the  prop 
erty  several  months  after  the  execution  of  the  mortgage  ; 
that  the  indebtedness  described  in  the  mortgage  was  ficti- 
tious,  and  that  the  Morses  and  Dunphy  had  so  stated  to 
divers  persons  ;  that  the  Morses,  in  October,  1867,  owed 
Dunphy  about  §6,000,  which  was  to  be  paid  in  Helena  in 
flour,  under  an  agreement  of  the  parties  ;  that  Dunphy,  by 
means  of  this  mortgage  and  fictitious  indebtedness,  had 
prevented  plaintiff,  and  other  judgment  creditors  of  the 
Morses,  from  collecting  their  demands  ;  that  Dunphy  had 
forbidden  the  sheriff  to  levy  upon  said  property,  and  the 
sheriff  had  returned  unsatisfied  the  executions  of  creditors 
of  the  Morses  to  the  amount  of  $35,000  ;  that  B.  Morse,  in 
conjunction  with  Dunphy,  was  disposing  of  the  mortgaged 
property,  and  had  realized  over  §30,000  ;  that  B.  Morse  and 
the  firm  of  E.  &  B.  Morse,  and  Dunphy,  had  nothing,  ex- 
cept this  property;  and  that  plaintiff's  judgment  would 
remain  unpaid  if  this  mortgaged  property  was  not  applied 
to  its  payment. 

The  complaint  prayed  that  the  mortgage  be  adjudged 
fraudulent;  that  a  receiver  be  appointed;  that  defendants 
be  enjoined  from  disposing  of  the  mortgaged  property,  and 
that  plaintiff  have  judgment  against  Dunphy  for  the  re- 
mainder due  upon  his  judgment  against  the  Morses. 

On  June  8,  186S,  an  amended  complaint  was  filed,  which 
contained  the  following  additional  allegations  :  That  B. 
Morse,  partner  as  aforesaid,  on  January  3,  1868,  executed 
an  assignment  to  Dunphy  of  the  mortgaged  property,  and 
authorized  him  to  dispose  thereof,  and  that  this  assignment 
was  fraudulent. 

On  June  22.  1868,  Diuiphy  answered,  and  denied  that  the 
judgment  in  favor  of  Kleinschmidt.  and  against  the  Morses, 
was  legally  obtained.  He  alleged  that  the  Morses  made  the 
mortgage  on  October  31,  1867,  in  good  faith,  to  secure  their 
indebtedness  to  him;  that  this  indebtedness,  with  interest, 
was  $30,0'»o,  and  that  he  had  received  on  account  of  the 
mortgage  about  $16,000.  The  material  allegations  of  tin,- 
complaint  were  denied. 


120  KLEINSCHMIDT  v.  DUNPHY.  [Aug.  T , 

The  answer  of  B.  Morse,  which  was  substantially  the 
same  as  that  of  Dunphy,  was  tiled  on  June  22,  1868.  The 
replication  denying  the  new  matter,  set  forth  in  the  answers 
of  Morse  and  Dunphy,  was  filed  on  the  same  day. 

On  June  23,  1868,  C.  E.  Duer  was  made  a  party  plaintiff 
upon  his  petition,  which  set  forth  that  he  was  a  judgment 
creditor  of  B  Morse,  as  surviving  partner,  in  the  sum  of 
$15,410.05.  The  complaint  contained  the  same  allegations 
as  that  of  Kleinschmidt,  and  admitted  a  payment  on  the 
judgment  of  $250.98.  Dunphy' s  answer  to  this  complaint, 
and  Duer's  reply  to  the  same,  stated  no  new  matter. 

The  appearance  of  B.  Morse  was  withdrawn  on  June  27, 
1868.  The  parties  changed  the  place  of  trial  to  Lewis  and 
Clarke  county  by  agreement,  and  the  case  was  tried  by  a 
jury  in  March,  1869. 

During  the  trial  Kleinschmidt  testified  as  follows  :  "I  had 
a  conversation  with  Elkanah  Morse,  one  of  the  firm  of 
E.  &  B.  Morse,  in  latter  part  of  October,  1867 ;  Elk.  Morse 
showed  me  an  agreement  between  E.  M.  Dunphy  and  E.  & 
B.  Morse,  in  which  Dunphy  agreed  to  cancel  a  certain  mort- 
gage made  by  him,  whenever  E.  &  B.  Morse  wanted  Dunphy 
to  do  so  ;  the  paper  was  signed  E.  M.  Dunphy  ;  I  recog- 
nized the  handwriting  as  Dunphy' s  ;  I  think  the  amount  of 
the  mortgage  was  stated,  but  don't  recollect;  I  think  the 
body  of  the  instrument  was  in  the  handwriting  of  Elkanah 
Morse." 

Dunphy  denied  that  any  such  agreement  was  ever  exe- 
cuted, and  excepted  to  the  ruling  of  the  court,  KNOWLES,  J., 
in  allowing  the  testimony  to  be  introduced. 

Kleinschmidt  also  testified  that  E.  Morse  told  him  he  had 
executed  a  mortgage  on  all  his  property  to  Dunphy  ;  that 
he  did  not  intend  that  Hamilton  and  Herron  should  make 
any  thing  out  of  him,  but  the  mortgage  was  not  intended  to 
affect  his  other  creditors  ;  that  the  agreement  he  showed 
him  would  protect  him  against  Dunphy  ;  that  he  had  pur- 
chased $6,000  or  $7,000  worth  of  goods  from  Dunphy, 
which  lie  was  to  pay  in  flour  ;  that  he  would  keep  the  mort- 
gage and  agreement  in  his  possession  and  be  safe  ;  that  his 


18(59.]  KLEINSCHMIDT  v.  DUNPHY.  121 

property  was  worth  $45,000 ;  that  all  of  his  indebtedness 
would  be  paid  ;  and  that  the  suit  of  Hamilton  and  Herron 
would  probably  go  against  him,  and  he  would  not  put  the 
mortgage  on  record  unless  in  case  of  emergency. 

Dunphy  objected  to  the  introduction  of  these  declara- 
tions of  E.  Morse,  made  in  the  foregoing  conversation  in 
his  absence.  The  objection  was  overruled,  and  defendant 
excepted. 

Other  witnesses  testified  regarding  the  declarations  of 
E.  Morse  or  B.  Morse,  concerning  the  mortgage  in  contro- 
versy, its  amount,  the  manner  of  its  payment,  and  the 
amount  of  the  indebtedness  due  from  the  Morses  to  Dun- 
phy on  account  of  the  mortgage,  all  of  which  were  made 
in  the  absence  of  Dunphy.  The  defendant  objected  to  the 
introduction  of  this  testimony,  and  excepted  to  the  ruling 
of  the  court  in  admitting  it. 

The  court  submitted  to  the  jury  twenty-one  issues  of  fact, 
and  instructed  them  that  three-fourths  of  their  number 
could  hnd  a  verdict.  The  jury  returned  the  findings  upon 
these  issues,  in  most  of  which  nine  jurors  concurred  and 
three  dissented.  The  defendant  objected  to  the  entry  of  the 
verdict,  because  it  was  found  by  nine  jurors.  This  objec- 
tion was  overruled,  and  defendant  excepted. 

On  April  2,  1869,  the  court,  KNOWLES,  J.,  signed  a  decree 
in  favor  of  plaintift'  for  $35,737,  and  $7,149  costs,  in  accord- 
ance with  the  findings.  The  motion  of  defendant  for  a  new 
trial  was  denied,  and  defendant  appealed. 

Elkanah  Morse,  of  the  firm  of  E.  &  B.  Morse,  died  on 
December  4,  1.867.  The  judgment  in  favor  of  Kleinschmidt 
against  Morse,  which  is  referred  to  in  the  pleadings,  was 
the  subject  of  an  appeal  to  this  court  in  December,  1868 ; 
ante,  p.  100. 

CnUMASEKO    &   ClIADWICK,   SlIOBKR   &   LOWRY,  WORD    & 

SPRATT  and  W.  F.  SANDERS,  for  appellant. 

No  lawful  verdict  was  found  by  the  jury,  as  twelve  juror? 
did  not  agree  in  finding  it.     IT.  S   (Y>nst.,  Amend.  5  and  7; 
Organic  Act,  §  6  ;  1  Story's  Eq.,  £§  (50,  72,  70  ;  3  Bl.  Com.  431  ; 
VOL.  I.  — 16. 


122  KLEIXSCIIMIDT  c.  DrxriiY.  [Aug.  T., 

432;  Sedgw.  Stat.  and  Const.  Law,  545,  546;  10  Bacon's 
Abr.  306,  315 ;  9  id.  564 ;  2  Bouv.  Law  Diet.  622 ;  id.  113, 
584  :  3  Greenl.  Ev.,  §§  260,  264  ;  2  Sto.  Const.,  §  1763  ;  Smith 
v.  Polled;  2  Cal.  94  ;  Whit,  N.  Y.  Prac.  391  ;  2  Lead.  Cr. 
Cas.  327 ;  Kruger  v.  Hudson  R.  R.  R.  Co.,  12  X.  Y.  Ap.  198. 

Oral  evidence  cannot  be  substituted  for  any  written  instru- 
ment, the  existence  of  which  is  in  dispute,  and  the  produc- 
tion of  which  is  material  to  the  issues  between  the  parties 
or  the  credit  of  the  witnesses.  1  Greenl.  Ev.,  §  88  ;  1  Phil. 
Ev.,  §475;  2  Phil.  Ev.,  §422. 

The  respondent  was  enabled,  by  this  improper  testimony, 
to  establish  a  false  foundation  for  introducing  evidence  of 
the  declarations  of  E.  &  B.  Morse.  There  was  no  evidence 
that  Dunphy  or  B.  Morse  ever  had  this  instrument,  Dunphy 
\vas  the  only  party  defending  this  suit,  and  the  statutory 
rule,  to  produce  papers,  does  not  apply.  Acts  1867.  220. 
§  422.  Dunphy  and  B.  Morse  swear  that  no  such  instru- 
ment was  ever  executed.  There  was  no  evidence  that  Dun 
phy  ever  had  any  control  over  said  instrument.  How  could 
Dunphy  produce  an  instrument  which  he  did  not  possess  or 
control,  and  the  existence  of  which  he  had  denied  under 
oath? 

DAVI:?  cV  THOROUGHMAN  and  WOOLFOLK  &  TOOLE,  for 
respondent. 

Kleinschmidt  could  testify  as  to  the  contents  of  the  writ- 
ing executed  by  Dunphy  to  E.  &  B.  Morse,  after  notice  to 
produce  the  original  had  been  served,  and  after  B.  Morse 
had  been  interrogated  concerning  its  execution.  Every 
means  to  obtain  the  original  had  been  exhausted,  and  parol 
evidence  of  its  contents  was  proper.  1  Greenl.  Ev.,  §§  82  to 
91  :  Prac.  Act  1867,  §§  380.  421,  422  ;  Gordon  v.  Searing,  8 
Cal.  49  ;  Ho.  yd  en  v.  Palmer,  2  Hill,  205. 

The  declarations  of  the  Morses  were  not  proved  until  evi- 
denc'-  had  been  introduced  showing  collusion  between  them 
and  Dunphy  to  defraud  creditors,  and  that  the  Morses 
remained  in  the  possession  of  the  mortgaged  property  and 
exercised  arts  of  ownership  over  it.  after  they  claimed  lu 


1869.]  KLKIXSCIIMIDT  e.  DUNPHY.  12h 

have  delivered  it  to  Dunphy.  The  question  as  to  the  foun- 
dation for  the  admission  of  this  evidence  was  for  the  discre- 
tion of  the  chancellor  below.  In  this  case  that  discretion 
was  properly  exercised.  2  Phil.  Ev.  177,  602;  Adams  v. 
Davidson,  6  Seld.  309  ;  Laudccker  \ .  Houyhtaling,  7  Cal. 
392  ;  Ellis  v.  Janes,  10  id.  456  ;  Visher  \.  Webster,  8  id. 
113;  Swartz  v.  Hazlett,  id.  128;  Seligman  v .  Kalkman, 
id.  213. 

The  verdict  of  nine  jurors  was  lawful.  Acts  1869,  66, 
X1  15. 

Appellant  took  no  valid  exception  to  the  charge  of  the 
<'ourt,  directing  that  nine  jurors  should  return  a  verdict. 
Exceptions  to  the  whole  charge,  without  pointing  out  the 
specific  part  excepted  to,  will  not  be  regarded  by  this  court 
if  an}'  portion  of  the  charge  is  correct.  Acts  1867,  §§  188. 
189 ;  Hicks  v.  Coleman,  25  Cal.  146 ;  More  v.  Del  Vatte. 
•28  id.  174  ;  Jones  v.  Osgood,  2  Seld.  234 ;  Hunt  v.  Maybec, 
3  id.  266. 

All  the  authorities  are  clear  that  a  jury  trial  may  be 
waived.  Appellants  had  no  right  to  gamble  for  a  verdict, 
and  then  object  to  receiving  it,  after  it  had  been  given. 

The  sixth  and  seventh  amendments  to  the  constitution,  re- 
lating to  trial,  by  jury,  do  not  affect  State  or  territorial  courts. 
Organic  Act,  §§  6,  13  ;  2  Sto.  Const.  575  to  579 ;  Ex  parte 
Smith,  10  Wend.  449  ;  Murphy  v.  People,  2  Cow.  815  ; 
Livingston  v.  Mayor,  8  Wend.  102  ;  Sedgw.  Stat.  and  Const. 
Law,  543  ;  Am.  Ins.  Co.  v.  Carter,  1  Pet.  546. 

This  is  a  bill  in  equity.  Equity  causes  are  not  embraced 
in  the  provisions  of  the  constitution,  relative  to  trial  by  jury. 
It  is  expressly  limited  to  '"  suits  at  common  law,"  where  the 
amount  in  controversy  exceeds  $20.  2  Sto.  Const.  577  to 
583;  Rathbiuiv.  Rathbun.  3  How.  Pr.  139;  Leev.  Tillot 
*  on,  24  Wend.  337 ;  Cahoon  v.  Levy,  5  Cal.  294. 

Equit}  will  render  judgment  against  a  fraudulent  vendee 
in  favor  of  a  creditor,  when  the  fraudulent  vendee  has  con- 
verted the  property  and  thereby  defeated  the  creditor's 
claim.  Equity,  having  obtained  jurisdiction  for  discovery, 
will  retain  it  for  relief.  $wfnfr>l'f7  r.  Roqcrs.  23  Cal.  233  ; 


124  KLEIXSCHMIDT  v.  DUNPHY.  [Aug.  T., 

Goodwin  v.  Hammond,  13  Cal.  168  ;  Edw.  Receivers,  415  ; 
King  v.  Baldwin,  17  Johns.  384. 

WARREN,  C.  J.  This  was  an  action  brought  by  respond- 
ents, as  judgment  creditors  of  the  partnership  firm  of  E. 
&  B.  Morse,  to  set  aside  a  mortgage  executed  by  said  firm 
to  defendant  Dunphy,  as  fraudulent,  and  to  subject  th<- 
property  conveyed  thereby,  in  the  hands  of  Dunphy,  to 
payment  of  their  respective  judgments. 

The  cause  was  tried  at  the  March  term,  1869,  of  the  dis- 
trict court,  in  and  for  Lewis  and  Clarke  county,  befor<- 
KNOWLES,  J.,  and  a  jury.  The  court  submitted  to  the  j un- 
certain issues  or  questions  of  fact,  and  directed  written  find- 
ings thereon. 

The  jury  returned  their  written  findings  upon  the  ques- 
tions of  fact,  signed  by  their  foreman,  and  by  three  of  th" 
jurors  as  dissenting  therefrom.  The  appellants  filed  objec- 
tions to  entry  of  the  findings  of  the  jury,  which  was  over- 
ruled, and  the  findings  were  entered  and  approved  by  the 
court ;  and,  on  the  same  day,  appellant  Dunphy  filed  notice 
of  a  motion  for  a  new  trial,  on  the  grounds  of  insufficiency 
of  the  evidence  ;  of  errors  in  law  occurring  at  the  trial ;  of 
newly-discovered  evidence,  and  of  error  in  the  entry  of  the 
findings  of  nine  of  the  jurors,  and  filed  affidavits  in  support 
of  his  motion.  On  April  2,  1869,  the  court  entered  a  decree 
in  accordance  with  the  facts  found  by  the  jury,  and,  after- 
ward, on  hearing  of  the  motion  for  a  new  trial,  overruled 
the  same. 

Defendant  Dunphy  appeals  from  the  decree  and  from  the 
order  overruling  the  motion  for  a  new  trial,  and  assigns 
several  causes  of  error. 

So  far  as  the' order  overruling  the  motion  for  a  new  trial 
is  concerned,  it  is  only  necessary  to  say,  that  when*  evidence 
is  conflicting,  the  jury  are  to  determine  the  facts,  and  their 
verdict  will  not  be  disturbed,  unless  clearly  unsupported  oy 
evid'Mire  before  them  ;  no  error  in  law  occurring  at  the  trial 
is  specified,  other  than  will  be  considered  in  discussing 
errors  assigned  in  statement  on  the  appeal,  and  the  affidavits 


1869.J  K.LEINSOHM1DT  V.  DUNPIIY.  125 

filed,  disclosing  newly-discovered  evidence,  show  that  evi 
dence  to  have  been  of  a  cumulative  character  ;  and,  hence, 
we  hold  the  court  below  did  not  err  in  overruling  the  motion. 

The  statement  on  appeal  assigns  nine  specifications  of 
error,  but,  on  the  hearing  in  this  court,  appellant,  in  his 
brief  and  argument,  relies  upon  but  three,  which  we  will 
consider  in  order. 

The  first  error  assigned  is  in  permitting  parol  evidence  to 
be  given  of  a  writing  alleged  to  have  been  executed  by 
defendant  Dunphy,  the  existence  of  which  was  controverted 
by  appellants. 

The  question  of  the  existence  of  facts  constituting  a  foun- 
dation for  the  admission  of  secondary  evidence,  was  one  for 
the  determination  of  the  court  under  the  rules  of  evidence, 
and,  while  the  evidence  was  conflicting,  the  record  seems  to 
sustain  the  action  of  the  court  in  permitting  parol  evidence 
of  the  contents  of  the  paper  to  go  to  the  jury. 

The  second  error  assigned  is  in  admission  of  the  declara- 
tions of  defendants  below,  E.  Morse  and  B.  Morse,  respect, 
ively,  concerning  the  conveyance  executed  by  them  to 
defendant  Dunphy,  made  in  the  absence  of  Dunphy. 

The  record  shows  that,  before  these  statements  of  the 
Morses  were  admitted,  evidence  had  been  introduced  tend- 
ing to  show  complicity  and  collusion  between  Dunphy  and 
the  Morses,  in  respect  to  the  conveyance  in  question,  which 
was  sufficient  to  make  competent  the  admissions  of  one  as 
against  the  others. 

The  next  error  assigned  is  in  allowing  the  findings  of  but 
three-fourths  of  the  jury,  three  dissenting  therefrom,  to  be 
received  and  entered,  and  in  entering  the  decree  upon  such 
findings. 

By  stipulation,  the  following  causes,  to  wit :  Brayv.  Batch- 
elder,  Sni/der  v.  Tier  nan,  and  Siegel  et  al.  v.  Jones  &  Lott, 
are  submitted,  subject  to  the  determination  of  this  question, 
which  is  one  of  a  most  interesting  and  Important  character 

The  act  of  the  legislative  assembly  of  the  Territory,  a» 
proved  December  215,  1867,  known  as  the  civil  practice  ao^- 
enacts  that  "there  shall   be  in  this  Territory  but  one  form 


126  KLEINSCHMIDT  v.  DUNPHY.  [Aug.  T. 

of  civil  action  for  the  enforcement  or  protection  of  private 
rights  and  the  redress  or  prevention  of  private  wrongs'" 
(section  1),  and  that  u  an  issue  of  fact  shall  be  tried  by  a  jury, 
unless  a  jury  trial  is  waived  or  a  reference  be  ordered,  as 
provided  in  this  act.''  (See  section  155.) 

Section  15  of  the  act  approved  January  15,  1869,  provides 
that  "in  all  civil  cases,  if  three-fourths  of  the  jurors  agree 
upon  a  verdict,  it  shall  stand  and  have  the  same  force  and 
'-ffect  as  if  agreed  upon  by  the  whole  of  the  jurors." 

It  is  claimed,  in  all  the  cases  under  consideration  in  which 
the  question  is  involved,  that  the  last-mentioned  act  is  in 
contravention  of  article  VII  of  the  amendments  to  the  con 
stitution  of  the  United  States,  and,  therefore,  void. 

We  will  first  consider  the  question  generally,  and  then 
apply  the  principle  involved  to  the  several  cases  submitted. 

The  article  of  the  constitution  in  question  reads  that  "in 
suits  at  common  law,  where  the  value  at  controversy  shall 
exceed  $20,  the  right  of  trial  by  jury  shall  be  preserved,  and 
no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  by 
any  court  of  the  United  States  than  according  to  the  rules 

•J  O 

of  the  common  law.v 

"We  are  led  in  the  first  instance  to  consider  the  nature  and 
extent  of  this  restriction.  We  believe  it  is  admitted,  and. 
at  all  events,  it  is  too  well  settled  to  admit  of  question,  that 
this  article  belongs  to  that  class  of  limitations  upon  the 
exercise  of  power  which  were  imposed  by  the  constitution 
upon  the  federal  government,  and  which  have  no  applica- 
tion to  the  State  governments  in  the  exercise  of  these  pow- 
ers which  were  '  reserved  to  the  States  respective!}-,  or  to 
the  people." 

The  restriction  is  general,  and  applies  to  all  the  depart- 
ments of  the  general  government  alike,  especially  to  the 
legislative  and  judicial  branches,  to  whom  are  assigned  the 
functions  of  enacting  and  of  construing  the  laws,  so  that 
neither  can  the  congress  by  law,  nor  the  national  courts  by 
their  rules  or  in  their  practice,  deny  to  a  citizen  the  right 
thereby  secured. 

The  several  States,  by  their  constitutions,  may  otherwise 


1869.]  KLEKN SCHMIDT  r.  ULMTIV.  327 

provide,  although  the  principle  is  one  of  such  ancient  origin. 
and  held  by  ourselves  in  common  \vitli  the  nation,  from 
whom  our  jurisprudence  is  mainly  derived,  in  such  high 
estimation  that,  with  but  few  exceptions,  it  is  incorporated 
in  the  constitutions  of  the  different  States  of  the  Union  in 
its  original  form,  and  in  many  of  them  has  been  extended 
beyond  the  terms  of  the  federal  constitution  and  applied  to 
trials  of  causes  in  equity,  as  well  as  at  common  law,  and 
regardless  of  the  amount  in  controversy. 

In  its  application  to  the  federal  government  the  right  of 
trial  by  jury  in  civil  cases  has  been  held  to  apply  only  to 
the  class  of  causes  specified  in  this  article,  that  is,  causes  at 
common  law,  as  distinguished  from  causes  of  equity  and  of 
admiralty  jurisdiction,  and  this  construction  is  well  settled 
by  the  courts. 

It  remains  then  to  determine  how  fur  this  provision  affects 
the  powers  of  our  territorial  governments,  and  to  this  end 
we  must  consider  its  source,  nature  and  extent.  The  con- 
dition of  a  Territory  of  the  United  States  is  somewhat 
anomalous.  The  extent  of  the  powers  of  its  local  govern- 
ment and  the  rights  of  its  inhabitants  have  furnished  occa- 
sion not  only  for  profound  legal  argument,  but  for  great 
political  dissension.  The  power  of  congress  to  legislate 
upon  the  local  or  domestic  affairs  of  the  people  inhabiting 
a  Territory  has  been  strenuously  denied,  but  at  this  time 
seems  to  be  authoritatively  established.  Whether  this  power 
be  derived,  as  claimed  by  some,  from  the  constitutional 
right  to  make  *;  all  needful  rules  and  regulations  respecting 
tin-  Territory  or  other  property  belonging  to  the  United 
States."  or  be  necessarily  deducible.  as  contended  by  other>. 
from  the  power  to  acquire  and  hold  territory,  ir  is  unnece^ 
sury  now  to  inquire. 

In  the  exercise  of  this  general  power  congress  passed  the 
act  establishing  and  creating  a  temporary  government  for 
this  Territory.  This  act  distributes  the  powers  of  the  local 
government  among  three  departments,  and  ordains  that  thn 
legislative?  power  "shall  extend  to  all  rightful  su'oj". 
legislation  consistent  with  the  constitution  of  • 


13t  KLEINSCHMIDT  v.  DUNPHY.  [Aug.  T., 

States  and  the  provisions  of  this  act;"  and  provides  that 
the  judicial  power  shall  be  vested  in  certain  courts,  the  juris- 
diction of  which  shall  be  limited  by  law,  provided  that  the 
supreme  and  district  courts  respectively  shall  possess  chan- 
cery as  well  as  common-law  jurisdiction. 

The  act  also  provides  that  "the  constitution  and  all  the 
laws  of  the  United  States  which  are  not  locally  inapplicable 
shall  have  the  same  force  and  effect  within  the  Territory  as 
elsewhere  within  the  United  States,"  and  clothes  the  district 
courts  created  by  it  with  the  same  jurisdiction  in  all  cases 
arising  under  the  constitution  and  laws  of  the  United  States, 
as  is  vested  by  law  in  the  district  and  circuit  courts  of  the 
United  States. 

Can  the  legislature  or  the  courts  thus  established  by  law 
or  in  their  practice  deny  the  right  of  trial  by  jury  in  suits 
at  common  law  in  which  the  value  at  controversy  exceeds 
twenty  dollars  ? 

The  argument  of  the  respondent  in  this  case  has  been  that, 
while  the  territorial  district  courts,  in  addition  to  their  local 
jurisdiction  under  the  territorial  laws  and  their  chancery 
and  common-law  powers,  are  also  vested  with  federal  juris- 
diction, they  yet  are  not  national  or  federal  courts,  as  estab- 
lished and  contemplated  by  the  constitution,  and  hence  that 
the  constitutional  restriction  we  are  considering  does  not 
apply  to  trials  of  causes  in  such  courts. 

On  the  other  hand,  it  is  urged  by  the  appellant  that  the 
organic  act  performs  the  functions  of  a  State  constitution, 
and  that  under  its  express  terms  all  the  general  provisions 
of  the  federal  constitution  apply  to  the  territorial  govern- 
ment. 

It  is  certainly  true  that  the  territorial  district  courts  are 
not  federal  courts,  as  contemplated  by  the  constitution. 
They  are  created  by  congressional  enactment  in  the  exercise 
of  the  power  to  govern  territory  of  the  United  States,  and 
must  necessarily  be  restricted  in  their  powers  and  jurisdic- 
tion to  the  limit  of  the  power  which  created  them.  What 
that  limit  is  we  will  consider  hereafter. 

It  will  be,  perhaps,  a  digression  to  discuss  the  nature  and 


1869.]  KLEINSCHMIDT  v.  DUNPHY.  129 

extent  of  the  powers  vested  in  the  district  courts  by  the 
organic  act,  but,  as  a  subject  which  has  attracted  general 
interest  and  germane  to  the  question  before  us,  we  will 
briefly  refer  to  it. 

The  district  court  sits  in  two  distinct  capacities,  as  a  local 
tribunal,  and  also  exercising  the  jurisdiction  of  a  federal 
v*urt. 

Is  a  local  tribunal,  its  practice  and  course  of  procedure, 
pnwided  its  common  law  and  chancery  jurisdiction  be  not 
impaired,  may  be  ivgulated  by  the  local  laws,  which,  how- 
ever, must  not  infringe  any  principle  of  the  constitution  or 
any  act  of  congress  applicable  to  it,  and  we  take  occasion, 
although  the  question  is  not  raised  in  the  record  of  any  of 
the  causes  now  under  consideration,  to  suggest  to  the  legis- 
lative assembly,  as  well  as  to  the  legal  profession  of  the  Ter- 
ritory, whether  the  civil  practice  act  now  in  force,  or  the 
construction  heretofore  placed  upon  it,  in  so  far  as  it  per- 
mits legal  and  equitable  claims  or  defenses  to  be  united,  be 
not  erroneous.  The  supreme  court  of  the  United  States,  in 
Thompson  v.  Railroad  Companies,  6  Wall.  Rep.,  hold 
that  "the  constitution  of  the  United  States  and  the  acts  of 
congress  recognize  and  establish  the  distinction  between  law 
and  equity.  The  remedies  in  the  courts  of  the  United  States 
are,  at  common  law  and  in  equity,  as  distinguished  and 
defined  in  that  country  from  which  we  derive  our  knowledge 
of  these  principles."  "And,  although  the  forms  of  proceed- 
ings and  practice  in  the  State  courts  shall  have  been  adopted 
in  the  circuit  courts  of  the  United  States,  yet,  the  adoption 
of  the  State  practice  must  not  be  understood  as  confounding 
the  principles  of  law  and  equity,  nor  as  authorizing  legal 
and  equitable  claims  to  be  blended  together  in  one  suit." 

If  it  be  true,  as  held,  that  the  constitution  and  the  acts 
of  congress  recognize  and  establish  the  distinction  between 
law  and  equity,  can  the  legislative  assembly  of  the  Terri- 
tory, under  the  organic  act,  abolish  that  distinction  in  the 
territorial  district  courts,  even  while  sitting  as  local  tribu- 
nals? As  federal  courts,  the  district  courts  are  understood 
to  be  governed,  in  all  cases  at  common  Jaw.  by  the  local 
VOL.  1  —  17. 


130  KLEINSCHMIDT  -c.  DUNPHY.  [Aug.  T., 

rules  of  decision  and  of  practice,  where  the  constitution  or 
statutes  of  the  United  States  do  not  otherwise  provide  ;  while 
in  causes  in  equity  the  proceedings  must  conform  to  the 
rules  governing  causes  in  equity,  notwithstanding  the  legis- 
lative assembly  have,  by  statute,  abolished  the  distinction 
between  forms  of  proceeding  at  law  and  in  equity,  and  have 
established  but  one  form  and  course  of  proceeding  in  all 
civil  actions.  But  to  return  : 

The  right  of  jury  trial,  secured  by  the  article  of  the  con 
stitution  under  consideration,  referring  not  only  to  trials  in 
the  national  courts  established  by  the  constitution,  and  the 
territorial  district  courts,  at  least  while  in  the  exercise 
merely  of  their  local  jurisdiction,  not  being  embraced  under 
its  provisions,  it  is  urged  that  the  court  below  did  not  err  in 
receiving  the  findings  and  rendering  the  decree  in  the  prin- 
cipal cause  now  under  consideration.  This  proposition 
assumes  that  the  cause  is  one  at  common  law,  and  for  the 
present  we  will  so  assume.  This  position  could  only  be 
maintained  by  holding  that,  while  the  constitutional  restric- 
tion applied  to  the  federal  judiciary,  it  did  not  extend  to 
the  legislative  power  intended  to  be  restricted.  We  have 
already  stated  that  it  was  designed  to  restrict  all  the  depart- 
ments of  the  federal  government,  legislative  as  well  as 
judicial.  If,  then,  it  is  restrictive  upon  congress  as  well 
as  upon  the  federal  courts,  can  congress,  in  the  exercise  of 
its  power  to  govern  a  Territory,  create  a  local  legislature  or 
local  courts,  and  delegate  to  either  a  power  which  it  does 
not  itself  possess,  to  deny  the  right  in  question  ?  We  think 
clearly  it  cannot. 

Even  without  the  provision  in  the  organic  act,  that  the 
constitution  and  laws  not  locally  inapplicable  shall  have 
the  same  force  and  effect  in  the  Territory  as  elsewhere  with- 
in the  United  States,  the  conclusion  would  be  the  same. 

Congress  has  no  power,  either  directly  or  by  a  delegation 
of  power  to  another  body  of  its  own  creation,  to  deny  to  a 
citizen  of  a  territory  the  right  to  a  trial  by  jury  in  a  suit  at 
common  law,  where  the  value  at  controversy  exceeds  $20. 

It  is  further  contended,  however,  that  inasmuch  as  the  a<-; 


1869.]  K.LKIXSCIIMIDT  o.  DUXPHY.  131 

:jf  the  legislative  assembly  requires  the  same  number  of 
jurors  as  the  common  law,  it  is  not  an  infraction  of  thn 
constitution. 

This  position  is  not  tenable. 

"Trial  by  jury,"  as  the  words  are  used  in  the  constitu- 
tion, had,  at  the  time  of  its  adoption,  a  fixed  legal  signifi- 
cation, and  from  time  immemorial  has  meant  a  trial  by  a 
tribunal  of  twelve  men,  acting  only  upon  a  unanimous 
determination.  The  origin  of  this  mode  of  trial  is  lost  in 
the  dimness  of  the  past,  but  from  the  earliest  period  down 
to  the  time  of  the  adoption  of  the  constitution,  unanimity 
of  twelve  jurors  alone  has  constituted  a  legal  verdict.  If 
the  legislative  assembly  could  dispense  with  one  attribute 
or  essential  of  a  verdict,  it  could  as  well  destroy  the  other, 
or  repeal  the  right  altogether.  It  can  do  neither ;  and, 
hence,  the  act  in  question  is,  in  so  far  as  it  applies  to 
actions  at  common  law  in  which  the  value  at  controversy 
exceeds  $20,  unconstitutional  and  void. 

The  causes  before  mentioned  of  Bray  v.  BatcJielder,  Sny- 
der  v.  Tiernan,  and  Siegel  et  al.  v.  Jones  &  Lott,  are  all 
common  law  causes,  and  embraced  within  the  foregoing 
principle,  and  the  judgments  in  them  must  be  reversed,  and 
the  causes  remanded  for  new  trial. 

The  cause  at  bar  (Klelnschmidt  v.  Diinpliy  et  al.}.  how- 
ever, is  clearly  one  of  chancery  jurisdiction,  and  it  remains 
no\v  to  consider  the  statute  in  reference  to  trials  of  causes 
in  equity. 

The  right  of  jury  trial  is  not  secured  by  the  constitution 
in  causes  of  equity  jurisdiction,  and  in  the  absence  of  statu- 
tory enactment,  federal  or  territorial,  it  does  not  exist.  In 
such  cases  the  chancellor  might,  according  to  the  established 
rules  of  chancery  practice,  call  a  jury  to  his  aid.  to  deter- 
mine questions  of  fact  arising  upon  the  hearing.  Such  ver- 
dict, however,  would  be  merely  advisory,  and  addressed 
solely  to  the  conscience  of  the  chancellor,  who  might 
wholly  disregard  it. 

'.Ve  have  seen  that  the  civil  practice  act  has  provided  the 
>;im>'  manner  of  disposing  of  issues  of  fact  in  all  civil  cases, 


132  KLEINSCHMIDT  v.  DUNPHY.  [Aug.  T., 

whether  in  law  or  in  equity.  It  follows,  from  what  we  have 
said,  that  the  legislative  assembly  has  the  same  power  as 
congress,  within  the  limitations  of  the  grant  of  power  to  it 
contained  in  the  acts  of  congress  and  the  constitution. 

Could  congress  confer  the  right  of  trial  by  jury  of  issues 
of  fact  in  causes  in  equity  in  the  federal  courts?  and  could 
congress  by  law  dispense,  in  such  causes,  with  the  requisites 
of  a  common-law  jury,  either  in  respect  to  number  or 
unanimity  ? 

We  think  it  could.  We  find  nothing  in  the  constitution 
preventing  the  exercise  of  such  power.  Hence,  we  conclude 
that  the  legislative  assembly  also  possesses  the  power,  under 
the  organic  act,  as  being  a  subject  of  rightful  legislation, 
and  contravening  no  provision  of  the  constitution  or  of  the 
acts  of  congress.  This  power  they  have  exercised,  and  it 
is  the  province  of  the  judiciary  to  construe,  and  not  to 
make  laws,  and,  in  construing,  to  give  effect  to  them  so  far 
as  it  may  be  done.  We  conclude,  then,  that  the  act  in 
question,  so  far  as  it  relates  to  trial  of  issues  of  fact  in 
causes  in  equity,  is  constitutional  and  valid. 

The  other  errors  assigned  in  the  statement  on  appeal  in 
this  case  were  not  urged  in  the  briefs  or  arguments  in  this 
court,  and  we  will  only  notice  the  refusal  of  the  court  to 
give  the  instructions  asked  by  both  parties. 

The  court  submitted  to  the  jury  only  specific  questions 
of  fact,  and  gave  all  the  instructions  necessary  in  regard  to 
the  questions  submitted,  as  no  general  verdict  was  required. 

On  examination  of  the  whole  record  we  find  no  error 
sufficient  to  warrant  a  new  trial. 

The  decree  of  the  court  below  is  affirmed,  with  costs. 

KNOWLES,  J.,  and  SYMES,  J.,  concurred. 

Exceptions  overruled. 

This  cause  was  taken  by  appeal  to  the  supreme  court  of 
the  United  States,  and  the  decree  of  the  district  court  was 
reversed.  11  Wall.  610. 


1869.  J  BAUTZ  v.  KUHWOBTH.  138 


BAUTZ  et  al.,  appellants,  v.  KUH  WORTH,  respondent. 

AGREEMENT  FOB  BUYING  LAND  —  how  rescinded — purcha&e-monty.  Neither 
the  vendor  nor  vendee  can  rescind  a  written  agreement  for  the  purchase  of 
laud,  if  the  buildings  thereon,  which  were  not  the  chief  inducement  to 
such  purchase,  are  destroyed  by  tire,  without  any  fault  of  the  vendor.  The 
vendee  cannot  recover  the  portion  of  the  purchase-money  which  he  paid 
the  vendor  on  thia  agreement  before  the  nre  occurred. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

BAUTZ  AND  HORSKEY  commenced  this  action  to  recover 
$1,000,  money  had  and  received  on  an  agreement.  The 
court,  WARREN,  J.,  sustained  Kuhworth's  demurrer  to  the 
complaint  and  rendered  j  udgment  for  defendant.  The  plain- 
tiffs appealed. 

The  facts  appear  in  the  opinion. 

CHUMASERO  &  CHADWICK,  for  appellants. 

The  complaint  states  facts  sufficient  to  constitute  a  cause 
of  action,  and  the  court  erred  in  sustaining  the  demurrer 
thereto.  Milliard  on  Vendors,  73  et  aeq.  /  Sto.  on  Sales, 
§§  423,  424,  448  ;  1  Sto.  Eq.,  g§  101,  102  ;  Bouv.  L.  D.  465. 

SHOBER  &  LOWRY,  for  respondent. 

Appellants  by  the  contract  had  the  privilege  of  paying 
&5,oOO  May  3,  1869,  and  take  the  deed,  or  refusing  to  pay 
said  sum  and  let  the  $1,000  go  as  stipulated  damages.  The 
appellants  chose  the  latter  and  cannot  recover  what  they 
have  paid  for  the  privilege  of  doing  what  they  have  done  in 
the  premises.  The  court  below  properly  sustained  the  de- 
murrer. Dak  in  \.  Williams,  11  Wend.  07;  Lester  v.  Jew- 
ell, 1  Kern.  453;  2  Pars,  on  Cont.  232,  233;  Guzley  v. 
Price,  16  Johns.  267. 

KNOWLES,  J.  The  complaint  in  this  cause  presents  the 
following  tacts  as  constituting  plaintiffs'  cause  of  action  : 

Appellants  made  an  agreement  with  respondent  on  the 
.Mil  day  of  April.  1800,  for  the  purchase  of  a  certain  lot. 


134  BAUTZ  c.  KUHWORTH.  [Aug.  T., 

together  with  the  appurtenances  thereto  belonging,  situate  in 
the  town  of  Helena. 

In  accordance  with  that  agreement  appellants  paid  re- 
spondent $1,000,  and  executed  and  delivered  to  J.  H.  Shober 
to  be  held  as  an  escrow  two  promissory  notes  secured  by  a 
mortgage  upon  the  premises  for  the  sum  of  $6, 500.  Respond- 
ent made  and  executed  a  deed  to  said  premises  to  appellants 
and  delivered  the  same  to  the  said  Shober  to  be  held  as  in 
escrow.  The  whole  agreement  was  to  be  consummated  on 
the  3d  day  of  May,  1869.  At  that  time  appellants  were  to 
pay  respondent  $5,500  in  addition  to  the  $1,000  already 
paid.  The  deed  was  to  be  delivered  to  them,  the  mortgage 
and  notes  to  be  delivered  to  respondent.  If  the  appellants 
tailed  to  comply  with  their  portion  of  the  agreement  the}" 
were  to  forfeit  to  respondent  the  $1,000  already  paid,  as 
liquidated  damages.  That  appellants  were  to  hold  posses- 
sion of  the  premises  from  the  said  5th  day  of  April  until  the 
said  3d  day  of  May.  Appellants  were  on  the  said  3d  day 
of  May  willing  and  ready  to  pay  the  respondent  the  sum  of 
$5,500,  and  in  all  respects  to  comply  with  the  terms  of  their 
agreement.  The  buildings  on  said  premises  were  worth  the 
sum  of  $6,500.  Respondent  was  unable  to  comply  with  his 
portion  of  the  agreement,  for  the  reason  that  on  the  28th 
day  of  April  these  buildings  were  destroyed  by  fire,  and 
respondent  was  unable  to  deliver  the  premises  as  they  were 
on  the  day  of  agreement.  Appellants  claim  judgment  for 
the  $1,000  paid  respondent. 

The  respondent  filed  a  general  demurrer  to  the  complaint, 
setting-  forth  that  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  The  court  sustained  the  demur- 
rer. The  appellants  appeal  to  this  court,  assigning  as  error 
this  ruling  of  the  court  below. 

The  question  presented  in  this  case  is,  could  the  appel- 
lants, when  it  became  impossible  for  the  respondent,  with- 
out any  fault  of  his,  to  deliver  the  premises  with  all  tlu- 
buildings  thereon,  as  they  were  at  the  time  of  the  agree- 
ment to  them  on  the  5th  day  of  May,  rescind  the  agreement  ? 

There  is  no  nllegation  that  the  respondent  could  not  con- 


L869.J  BAUTZ  c.  Kun WORTH.  130 

vey  to  them  a  good  and  valid  title  to  the  lot.  There  is  none 
that  the  buildings  were  the  chief  inducement  to  the  agree 
ment,  and  a  prayer  that  the  contract  be  rescinded  for  that 
reason.  The  appellants  seem  to  have  considered  that  the 
destruction  of  these  buildings  entitled  them  to  rescind  the 
contract. 

If  the  buildings  had  been  damaged  without  the  fault  of 
respondent,  to  the  extent  of  85,  so  that  he  could  not  have 
delivered  the  premises  to  appellants  in  the  same  condition 
they  were  at  the  date  of  the  agreement,  in  principle  the 
same  reasons  would  exist  for  rescinding  the  agreement  as 
exists  in  this  case.  If  any  other  rule  prevailed,  the  right 
to  rescind  an  agreement  would  depend  upon  the  amount  of 
damages  done  the  premises  bargained  for,  and  it  would 
devolve  upon  the  court  to  decide  when  a  sufficient  amount 
of  damages  had  been  done,  premises  bargained  for,  to  war- 
rant a  contracting  party  to  rescind  the  agreement.  We 
have  been  unable  to  find  any  authority,  and  do  not  believe 
that  any  exists,  to  the  effect  that  where  an  appurtenance  to 
real  estate,  which  was  not  the  chief  inducement  to  the  pur- 
chase of  the  same,  has  been  damaged,  or  even  destroyed, 
without  any  fault  of  the  vendor,  so  that  he  could  not  deliver 
the  premises  on  the  day  they  were  to  be  delivered  to  the 
vendee  in  the  same  condition  they  were  on  the  day  the 
agreement  was  made,  the  vendee  would  have  the  right  to 
rescind  the  agreement  altogether. 

Believing  that  such  is  not  the  law,  we  find  no  error  in  the 
ruling  of  the  court  below. 

It  is  true,  if  the  premises  were  respondent' s  at  the  time 
of  the  fire,  the  loss  of  the  buildings  would  be  his,  and 
the  appellants  might  have  their  value  deducted  from  the 
amount  the}*  were  to  pay  him  for  the  premises ;  or,  if  the 
buildings  were  the  chief  inducement  for  the  purchase  of 
the  premises,  perhaps  a  court  of  equity  would,  for  this 
reason,  order  the  agreement  rescinded  and  canceled.  But 
to  allow  a  vendee  to  rescind  an  agreement  for  the  purchase 
of  real  estate,  for  a  damage  to  an  appurtenance  thereto, 
without  any  fault  of  the  vendor,  which  could  be  eomprii- 


136  GRANT  V.  SPENCER.  [Aug.  T., 

sated  for  in  money,  would  be  going  farther  than  we  think 
we  would  be  warranted.  For  the  same  reason  we  see  no 
reason  why  the  vendor  might  not  rescind  the  agreement. 
He  is  without  fault,  and  the  obligations  of  an  agreement  are 
mutual ;  hence,  if  one  could  rescind,  why  not  the  other. 
Yet  who  doubts  that  the  vendees  in  this  case  might  have 
maintained  an  action  for  a  specific  performance  of  this 
agreement,  had  they  performed,  or  offered  to  perform,  their 
part  of  the  agreement,  and  could  have  had  the  value  of  the 
building  deducted  from  the  amount  to  be  paid  for  the 
premises. 

These  being  the  views  of  the  court  in  this  case,  the  judg- 
ment of  the  court  below  is  affirmed. 

Exceptions  overruled. 


GBANT,  respondent,  v.  SPENCER  et  al.,  appellants. 

STATUTORY  CONSTRUCTION  —  act  relating  to  grounds  for  refusing  new  trial  i.s- 
directory.  Section  196  of  the  civil  practice  act,  requiring  the  court  to  state 
in  writing  the  grounds  on  which  a  new  trial  is  refused,  is  directory.  The 
failure  of  the  court  to  state  such  grounds  in  this  case  did  not  injure  the 
appellants. 

PROMISSORY  NOTE  —  notice  of  non-payment  not  waived  by  presence  of  indorser. 
The  presence  of  one  of  the  iudorsers  of  a  note,  when  the  holder  presents  it 
to  the  maker  at  maturity  for  payment,  does  not  waive  a  regular  n.otice  of 
its  non-payment  to  the  indorsers. 

Appeal  from  the  First  District,  Madison  County. 

ON  April  28,  1868,  Grant  commenced  this  action  in  the 
district  court  against  three  defendants,  on  the  following 
instrument : 

"$700  Gold. 

VIRGINIA  CITY,  M.  T.,  October  1,  1867. 
On  the  1st  day  of    March,   1868,  for  value  received,  1 
promise  to  pay  Spencer,    Harrison  &  Co.,  or  order,  the  sum 
of  $700  in  good  gold  dust  or  United  States  currency,  at  cur 


1869.]  GRANT  «.  SPENCER.  137 

rent  rates,  with  interest  from  date  until  paid,  at  the  rate  of 
five  (5)  per  cent  per  month. 

J.  B.  CHAPIN." 

[Stamp.] 

Indorsements : 

"  We  hereby  transfer  the  within  note  to  J.  M.  Grant,  Vir- 
ginia City,  M.  T.,  December  7,  1867. 

SPENCER,  HARRISON  &  CO." 

The  payments  indorsed  thereon  amounted  to  $392.50. 

A  jury  trial  was  waived  and  the  case  was  tried  by  the 
court,  HOSMER,  J.,  in  June,  1868,  and  judgment  was  ren- 
dered for  plaintiff  for  $698,  which  was  to  bear  interest  at 
the  rate  of  5  per  cent  per  month  until  paid.  The  defend- 
ant' s  motion  for  a  new  trial  was  not  heard  until  May,  1869, 
when  the  court,  WARREN,  J.,  overruled  the  same,  without 
stating  in  writing  the  grounds  therefor,  and  defendants 
appealed. 

The  statute  of  Montana,  relating  to  indorsers  on  promis- 
sory notes,  is  as  follows  : 

"  Indorsers  of  *  *  *  promissory  notes  shall  be  con- 
tingently liable  only,  until  after  they  shall  have  been  notified 
of  the  presentation  and  non-payment  thereof,  at  maturity, 
by  the  person  or  persons  primarily  liable  for  their  payment." 

"  In  order  to  make  the  contingent  liability  of  any  indorser 
of  any  *  *  *  promissory  note  absolute,  it  shall  be  neces- 
sary for  the  holders  of  the  paper  to  cause  it  to  be  presented 
at  the  place  where,  by  its  terms,  it  is  payable,  if  any  place 
of  payment  be  therein  or  thereon  specified,  and  if  no  place  of 
payment  be  specified,  then  to  the  person  himself  who  is  prima- 
rily liable  for  the  payment ;  and,  if  payment  thereof,  on  such 
presentation  at  maturity,  be  neglected  or  refused,  to  cans*1  a 
written  or  printed,  or  partly  writtenand  partly  printed,  notice 
of  such  presentation,  demand  and  non-payment,  briefly  de- 
scribing the  *  *  *  note,  to  be  served  immediately  there- 
after upon  the  indorser,  unless  the  same  shall  be  protested 
in  the  usual  manner  by  a  notary  public  ;  in  which  case  the 
official  certificate  of  protest  of  such  officer,  made  on  the  day 
VOL.  I.  — 18. 


138  GBANT  t>.  SPENOEK.  [Aug.  T.. 

of  protest  inclosed  in  letter  form,  and  deposited,  post-paid, 
in  the  post-office,  directed  to  such  indorser  at  his  usual 
place  of  residence,  will  charge  him  in  the  same  manner." 

During  the  argument  of  the  case,  the  respondent  remitted 
all  interest  on  the  judgment,  in  excess  of  ten  per  centum  per 
annum. 

The  other  facts  are  stated  in  the  opinion. 

H.  N.  BLAKE,  for  appellants. 

The  court  should  have  stated  in  writing  the  grounds  on 
which  the  new  trial  was  refused.  Civ.  Pr.  Act,  1867,  §  196. 

The  statement  shows  the  following  facts :  That  no  false 
representations  were  made  to  respondent  by  appellants 
concerning  the  note  ;  that  respondent  neglected  to  collect 
the  same  from  the  maker,  because  he  was  obtaining  five  per 
cent  per  month  interest ;  that  respondent  bought  the  note  on 
his  own  judgment,  and  that  the  note  was  not  protested  until 
two  months  after  maturity. 

The  pleadings  of  the  parties  treat  the  instrument  sued  on 
as  a  negotiable  promissory  note.  Complaint  and  answer. 

The  appellants  were  indorsers  upon  the  note  and  entitled 
to  notice  of  the  presentation  and  non-payment  thereof  at 
maturity  by  the  maker.  Acts  1865,  343,  §§  5,  6. 

The  instrument  sued  on  possesses  all  the  elements  of  a 
negotiable  promissory  note.  The  amount  to  be  paid  on  the 
note  is  fixed  in  it,  and  also  by  the  statute.  1  Pars,  on  Notes 
&  Bills,  30,  ch.  3 ;  Acts  1865,  338,  §  1. 

The  rate  of  interest  on  the  judgment  should  be  ten  pef 
centum  per  annum.  GriffitJi  v.  He  rsJt field*  ante,  66. 

DAVIS  &  THOROUGHMAN,  for  respondent. 
No  brief  on  file. 

SYMK&,  J.  This  was  an  action  on  a  promissory  note- 
holder against  indorsers —  tried  at  the  Madison  countv  dis- 

O  ^ 

trict  court  in  June.  1868.  before  the  court,  and  judg- 
ment given  for  plaintiff  for  amount  due  on  note.  Motion 
for  new  trial  overruled,  and  case  brought  up  on  statement 
for  new  trial  and  order  overruling  same. 


1869.]  GRANT  c.  SPJSNC.KK.  130 

The  complaint  alleges  that  one  Chapin.  on  the  1st  of 
October,  1867,  executed  to  the  defendants  his  promissory 
note,  due  the  1st  of  March,  1868,  for  $700  in  gold,  with 
interest  at  five  per  cent  per  month  until  paid.  That  on  the 
7th  of  October,  1867,  defendants  indorsed  said  note  to 
plaintiff;  that  plaintiff  presented  said  note  when  due  to 
said  Chapin,  and  he  paid  $207.50  on  same,  but  failed  to  pay 
more  at  that  time,  and  that  defendants  had  notice  thereof; 
that  on  the  9th  and  29th  days  of  March,  plaintiff  called  on 
said  Chapin  and  demanded  payment  of  said  note,  and  on 
the  9th  Chapin  paid  8100,  and  on  the  29th,  §85,  but  has  since 
failed  to  pay  balance  due  :  that  plaintiff  protested  note,  and 
gave  notice  to  defendants. 

The  answer  admits  indorsement  of  note  ;  denies  payment 
vvas  refused,  and  states  that  when  plaintiff  presented  note. 
Ohapin  asked  plaintiff  how  much  money  he  needed,  and 
plaintiff  said  $200  would  do  him,  and  Chapin  paid  him 
$207.50  ;  that  on  the  9th  of  April  plaintiff  called  again,  and 
received  $100 ;  and,  on  the  29th,  called  with  defendant 
Spencer,  and  demanded  payment,  and  received  $85  ;  den}' 
notice  of  refusal  to  pay,  arid  allege  that  they  asked  plain- 
tiff several  times  if  he  had  collected  note,  and  he  replied 
that  he  did  not  want  the  money,  and  it  was  drawing  five  per 
cent  a  month  ;  deny  owing  plaintiff  any  sum,  and  ask  judg- 
ment for  costs. 

The  evidence  in  statement  for  new  trial  shows  that  note 
was  indorsed  by  defendants  ;  that  when  note  became  due, 
defendant  Spencer  went  with  and  introduced  plaintiff  to 
maker  of  note,  to  demand  payment  of  same,  which  he  did  ; 
'jiat  Chapin  did  not  refuse  to  pay  note,  but  asked  plaintiff 
uow  much  money  he  wanted  :  plaintiff  replied  $200  would 
do  him,  and  Chapin  paid  him  8207.50;  that  on  the  9th  of 
April,  '68,  he  called  again  and  received  $100  —  all  he  de- 
manded—  and  that  on  tin-  29th  he  called  with  defendant 
Spencer,  and  demanded  payment;  Chapin  replied  he  was 
a  little  hard  up,  and  asked  plaintiff  how  much  money 
would  do  him  then  :  plaintiff"  said  $85  would  answer,  but 
he  must  have  balance  soon  :  Chapin  paid  him  $85.  Twc 


140  GRANT  v.  SPENCER.  [Aug.  T., 

witnesses  testified  that  plaintiff  said  he  did  not  want  to 
draw  money  on  note,  for  it  was  drawing  five  per  cent  a 
month,  and  he  considered  Chapin  good  as  the  bank.  Note 
was  not  protested  until  two  months  after  due,  and  three 
payments  had  been  made  on  same,  and  no  notice  given  of 
non-payment,  except  two  months  after  due.  Plaintiff  tes- 
tified and  did  not  contradict  foregoing  statement  of  evidence 
as  to  protest,  notice,  etc. 

The  errors  assigned  on  denying  motion  for  new  trial  are, 
1.  That  the  court  erred  in  not  stating  grounds  for  refusing 
new  trial  in  writing ;  2.  In  finding,  from  the  facts,  that 
plaintiff  was  entitled  to  recover,  and  that  defendants  were 
liable  as  indorsers ;  3.  In  finding  that  plaintiff  was  entitled 
to  five  per  cent  per  month  on  judgment. 

Section  196,  Civil  Code,  which  provides  that  the  court  or 
judge  shall  state  in  writing  the  grounds  upon  which  a  new 
trial  is  granted  or  refused,  is  directory,  and  it  is  not  seen 
how  the  appellants  were  prejudiced  by  the  grounds  not  being 
specially  stated  in  writing.  This  case  was  tried  by  the 
court,  and  the  question  is,  does  the  evidence  or  facts  con- 
tained in  the  statement  for  new  trial  support  the  findings  ol 
court,  that  the  plaintiff  was  entitled  to  recover  against  the 
defendants  the  amount  due  on  the  note  as  indorsers  thereof. 
It  was  admitted  that  the  writing  in  this  case  is  a  negotiable 
promissory  note.  To  hold  an  indorser  the  note  must  be 
presented  to  maker  at  maturity  and  payment  demanded, 
and  if  neglected  or  refused,  notice  given  within  reasonable 
time  to  indorser.  The  note  in  this  case  was  presented  at 
maturity  by  the  holder,  in  the  presence  of  one  of  the  indor- 
sers, to  the  maker  for  payment,  who  did  not  refuse  to  pay, 
but  asked  holder  how  much  money  he  wanted ;  he  said 
$200  would  do  him,  and  maker  paid  him  8207.50.  Some 
time  after  holder  again  presented  note  for  payment  and  re- 
ceived $100  on  same,  and  again  (on  29th  of  ^April)  presented 
note  in  presence  of  indorser  and  received  $85  on  same,  the 
amount  he  said  would  do  him  at  the  time,  but  he  must  have 
balance  in  short  time.  There  was  no  protest  or  notice  under 
two  months  after  note  became  due  to  indorser  that  payment 


1869.]  GRANT  v.  SPENCER.  143 

had  been  refused,  or  that  holder  looked  to  indorsers  for 
payment ;  but  proof  that  holder  told  indorsers  and  others, 
after  presentment  and  receiving  $207.50,  that  he  did  not 
want  to  collect  the  money  as  it  was  drawing  five  per  cent 
a  month  and  maker  was  good  as  bank.  Then  if  there  was 
no  regular  notice,  was  the  presence  of  the  indorser,  when 
demand  was  made,  constructive  notice,  or  such  knowledge 
as  would  excuse  notice,  or  any  waiver  of  same  ?  We  think 
not.  "  Knowledge  in  fact  is  no  excuse  for  regular  notice." 
1  Pars,  on  Bills  &  Notes,  521.  And  where  the  drawer  of  a  bill 
undertook  to  present  it  after  maturity,  although  attempts 
had  been  made  by  indorser  to  procure  payment,  it  was  held 
no  waiver  of  notice.  Pars,  on  Bills  &  Notes,  521.  The  expres- 
sion in  a  conversation  that  note  would  be  paid  was  held  not 
sufficient  to  prove  waiver  of  notice,  or  promise  to  pay  or  see 
it  paid.  17  Pick.  332.  There  is  in  the  statement  no  evidence 
to  prove  that  there  was  notice  or  protest  under  two  months, 
or  that  there  was  any  waiver  or  promise  to  pay  by  indors- 
ers ;  and  the  court  erred  in  finding  the  defendants  respon- 
sible as  indorsers  and  in  overruling  motion  for  new  trial. 
Whether  verbal  notice  is  good  under  our  statute  may  be 
questionable,  but  the  point  is  not  raised  in  this  case.  The 
third  error  assigned  is  the  finding  that  plaintiff  was  entitled 
to  five  per  cent  per  month  interest  on  judgment.  It  has 
been  decided  in  this  court  (but  I  believe  since  the  rendition 
of  this  judgment)  that  a  judgment  could  draw  but  ten  per 
cent.  But  plaintiff  appeared  in  this  court  and  remitted  all 
over  ten  per  cent,  which  would  have  prevented  defendants 
from  being  prejudiced  thereby. 
Judgment  reversed  and  new  trial  ordered. 

Exceptions  sustained. 


142  MCGREGOR  v.  WELLS,  FARGO  &  Co.     [Aug.  T. 


MeG-REGOR,  Assignee,  respondent  v.  WELLS,  FARGO  &  Co. , 

appellants. 

SHERIFF'S  RETURN  —  eannot  be  quashed  by  a  motion.    The  sheriff's  return  on 

an  execution  caiinot  be  quashed  by  a  motion  and  evidence  of  its  illegality 

or  falsehood. 
SHERIFF'S  RETURN  —  remedy  of  injured  party.    The  party,  who  is  injured  by  a 

sheriff's  return  upon  an  execution,  can  maintain  an  action  for  damages 

against  the  officer. 
SHERIFF'S  RETURN  ANNULLED  BY  conn-  —  payment  of  execution.    The  court 

can  annul  the  sheriff's  return  upon  an  execution,  which  shows  that  he  has 

applied  one  execution  in  payment  of  another  in  his  hands. 
EXECUTION  ISSUED  FOR  ASSIGNEE  OF  JUDGMENT  —  collection  of.    The  court  c;wi 

direct  an  execution  to  be  issued  in  favor  of  the  assignee  of  a  judgment,  OT. 

motion  and  proof  of  its  assignment,   but  it  cannot  order  the  officer  to  co". 

lect  an  execution  in  a  particular  manner. 

Appeal  from  the  Third  District,  Lewis  and  Clarke 
County. 

,\.  M.  CLARKSON  recovered  a  judgment  for  $5,000  against 
Wells,  Fargo  &  Co..  in  the  district  court  in  and  for  Lewis 
and  Clarke  county,  in  July,  1868.  In  December,  1867, 
Wells,  Fargo  &  Co.  brought  an  action  in  the  same  court 
against  Clarkson,  Norman  &  Drake,  partners,  and  doing 
business  under  the  style  of  Drake,  Clarkson  &  Co.,  to 
recover  a  partnership  debt.  At  the  trial  in  October,  1868, 
the  plaintiffs  dismissed  the  case  as  to  Norman  and  Drake, 
and  recovered  judgment  against  Clarkson  for  $2,673. 3d.  On 
December  14,  1868,  an  execution  was  issued  in  favor  of 
Clarkson,  against  Wells,  Fargo  &  Co.,  and  placed  in  the 
hands  of  the  sheriff.  On  the  same  day,  an  execution  was 
issued  in  favor  of  Wells,  Fargo  &  Co.,  against  Clarkson, 
and  placed  in  the  hands  of  tin-  sheriff.  On  the  iirst  execu- 
tion, the  officer  made  the  following  return  : 

"Having  an  execution  in  my  hands  bearing  even  date 
herewith,  in  favor  of  Wells,  Fargo  «fe  Co.,  against  John  M. 
Clarkson,  on  a  judgment  in  the  district  court  of  the  third 
judicial  district  of  the  Territory  of  Montana,  in  and  for 
Lewis  and  Clarke  county,  i'or  the  sum  of  $2,673.38,  dated 
October  20,  I868\  the  amount  of  their  execution,  and  the 


1869. J  MCGREGOR  0.  WKLLS,  FARGO  &  Co.  143 

interest  thereon,  amounting  to  $2,544.50,  is  applied  as  an 
offset  to  the  execution  first  above  mentioned,  and  this  exe- 
cution is  returned  satisfied,  and  the  proceeds  applied  as 
aforesaid 

W.   K.  ROBERTS,  Sheriff:1 
December  14,  1868. 

The  officer  made  a  return  of  the  same  character  upon  the 
execution  in  favor  of  Wells,  Fargo  &  Co. 

On  motion  of  McGregor,  the  assignee  of  one-half  of  the 
judgment  in  favor  of  Clarkson,  the  court,  KTSTOWLES,  J., 
canceled  the  return  of  the  sheriff  on  the  first  execution, 
and  ordered  that  an  execution  should  be  issued  in  favor  of 
McGregor,  and  placed  in  tho  hands  of  the  sheriff;  and  that 
the  sheriff  "  execute  said  process  of  execution  by  using  all 
lawful  means  to  collect  the  balance  due  of  said  judgment, 
with  the  whole  amount  of  the  costs  now  due  in  said  cause, 
and  pay  the  same  over  to  the  said  A.  McGregor,  in  the 
manner  provided  by  law." 

To  this  order,  Wells,  Fargo  &  Co.  excepted. 

The  opinion  contains  the  other  facts. 

WOOLFOLK  &  TOOLE,  for  appellants. 

The  judgment  assigned  to  McGregor  was  subject  to  all 
offsets  existing  at  the  time  of,  or  before  notice  of  the  assign- 
ment. Civ.  Pr.  Act,  §  5 ;  McCabe  v.  Grey,  20  Cal.  515. 

The  filing  of  the  assignment  with  the  clerk  of  the  district 
court  was  not  constructive  notice  under  the  laws  of  Montana. 
Call  v.  Hastings,  3  Cal.  179  ;  Acts  1865,  433,  §§  23,  24,  25  ; 
2  Bouv.  L.  D.,  tit,  "to  record."  It  was  no  part  of  the  records. 

The  execution  upon  Clarkson' s  judgment  was  the  proper 
httbj£<;t  of  set-off  to  the  execution  of  Wells.  Fargo  &  Co., 
against  him,  unless  McGregor  could  show  that  appellants 
had  actual  notice  of  the  assignment  of  Clarkson  to  him, 
prior  to  the  date  of  their  judgment  against  Clarkson.  If  no 
execution  had  been  issued,  it  would  have  been  the  duty  of 
the  court  to  set  off  the  executions  against  each  other  upon 
motion.  Pnrl<>r  \.  /,/AYY////.  -22  ('a!.  430;  5  Al>b.  Diu\  Ifi, 


144  MCGREGOR  #.  WELLS.  FARGO  &  Co.     [Aug.  T., 

§  186,  et  seq.;  Chamberlin  v.  Day,  3  Cow.  353  ;  Utica  Ins. 
Co.  v.  Power,  3  Paige,  365. 

The  court  refused  to  consider  evidence  showing  that 
appellants  had  no  notice  of  the  assignment  to  McGregor, 
and  ordered  an  execution  in  favor  of  McGregor  to  be  issued, 
and  thereby  deprived  appellants  of  their  offset. 

The  assignee  should  have  applied  to  the  court  to  be  sub- 
stituted in  the  action,  which  was  not  done.  Civ.  Prac.  Act, 
§16. 

No  indorsement  was  made  on  the  execution  in  favor  of 
Clarkson,  that  it  had  been  assigned  to  McGregor.  The 
sheriff  had  a  right  to  set  off  one  execution  against  the  other 
Waterman  on  Set-offs,  412,  413,  414. 

The  sheriff's  return  on  the  executions  satisfies  both  judg- 
ments. The  order  of  the  court  opens  up  one  judgment,  and 
leaves  the  other  satisfied.  If  respondent  has  any  remedy, 
it  is  against  the  officer.  The  return  could  not  be  set  aside 
by  motion  and  affidavits.  The  remedy  was  by  bill  in  equity. 
Egery  v.  Buchanan,  5  Cal.  53. 

There  was  no  error  in  the  clerk  issuing  the  execution  in 
the  name  of  Clarkson  instead  of  respondent.  He  could  not 
do  otherwise  without  an  order  of  court.  Civ.  Prac.  Act,  §  16. 

CHUMASERO  &  CHAD  WICK,  for  respondent. 

Respondent  took  one-half  of  the  judgment  assigned  to 
him,  without  any  right  of  set-off  of  the  judgment  subse- 
quently recovered  by  appellants  against  Clarkson.  Porter 
v.  Leach,  13  Mete.  482  ;  Makepeace  v.  Coates,  8  Mass.  451  ; 
Waterman  on  Set-off,  391  ;  Baker  v.  Hoag,  6  How.  Pr.  201 ; 
5  Abb.  Dig.  16,  §§  188,  189,  202,  208  ;  10  U.  S.  Dig.  391,  §  13. 

The  question  of  notice  does  not  arise  in  this  case,  as  the 
appellants  did  not  suffer  on  account  of  no  actual  notice 
being  given.  Graves  v.  Woodbury,  4  Hill,  559. 

The  appellants  had  legal  constructive  notice  of  the  assign- 
ment to  respondent.  Civ.  Prac.  Act.  §§  204,  205,  206. 

SYMES,  J.  This  was  an  appeal  from  an  order  made  by 
the  court  below,  annulling  and  setting  aside  the  return  of 


1869.]          MCGREGOR  v.  WELLS,  FARGO  &  Co.  146 

the  sheriff  to  an  execution  in  the  case,  and  ordering  an  exe- 
cution to  issue  in  favor  of  the  assignee  of  the  judgment. 

Plaintiff, Clarkson, recovered  a  judgment  for  $5,000  against 
defendants,  Wells,  Fargo  &  Co.,  on  the  18th  day  of  July, 
1 868,  and,  on  the  same  day,  said  plaintiff  assigned  one-half 
of  said  judgment  to  Archibald  McGregor,  by  an  assignment 
in  writing,  and  filed  same  with  the  clerk  of  the  court.  And 
on  the  14th  of  December,  1868,  an  execution  was  issued  on 
said  judgment  for  balance  due  thereon  —  $2,517.03,  and 
interest  —  and  delivered  to  the  sheriff  for  collection.  On 
the  15th  of  February,  1869,  the  sheriff  made  a  return  on 
said  execution  to  the  effect  that,  having  an  execution  in  his 
hands  in  favor  of  defendants,  Wells,  Fargo  &  Co.,  and 
against  the  plaintiff  in  said  aforementioned  execution,  on  a 
judgment  in  the  same  court  for  $2,673.38,  that  he  applied 
the  amount  due  on  said  first  execution  as  a  set-off  on  the 
last-mentioned  execution,  and  returned  the  same  satisfied. 
Afterward  the  said  McGregor  moved  the  court  to  annul  and 
set  aside  the  return  of  the  sheriff  to  the  execution,  and  to 
order  an  execution  to  issue  in  favor  of  him,  for  so  much  of 
the  judgment  as  had  been  assigned  to  him  (the  balance 
being  paid).  The  court  sustained  the  motion,  to  which 
defendants  excepted. 

The  only  question  presented  is,  did  the  court  below  err 
in  sustaining  the  motion  to  quash  the  return  of  the  sheriff 
to  the  execution,  and  directing  an  alias  execution  to  issue 
in  favor  of  the  assignee  of  the  judgment.  This  depends, 
first,  whether  sufficient  appeared  on  the  face  of  the  judg- 
ment roll,  and  the  execution  returned  to  the  court,  to  jus- 
tify the  court  in  quashing  and  annulling  the  return ;  and, 
second,  whether  the  assignment  of  the  judgment,  from 
Clarkson  to  McGregor,  justified  the  court  in  directing  an 
execution  to  issue  in  favor  of  the  assignee. 

The  court  could  not  quash  or  annul  thp  return  of  the 
execution,  on  motion,  on  evidence  aliunne  of  irregularity, 
falsehood  or  illegality  in  the  conduct  of  the  sheriff.  This 
can  only  be  reached  by  action  against  the  sheriff  for  a  false 
return,  and  damages  resulting  tnerefrom. 
VOL.  L  — m 


146  MCGREGOR  v.  WELLS,  FARGO  &  Co.     [Aug.  T.. 

The  transcript  on  appeal  contains  the  judgment  in  favor 
of  Clarkson  against  Wells,  Fargo  &  Co.,  the  assignment  to 
McGregor,  the  execution  and  return  of  the  sheriff,  and  the 
order  of  court  and  exception  to  same.  The  judgment  and 
execution  are  regular  and  formal ;  and  there  being  no  stat- 
ute in  this  Territory  authorizing  the  sheriff  to  set  off  one 
execution  in  his  hands  in  favor  of  another,  or  to  apply  one 
execution  in  payment  of  another ;  and  the  return  on  its 
face  showing  the  sheriff  had  done  this,  the  court  committed 
no  error  in  annulling  and  setting  aside  the  return.  A  court 
has  full  power  over  its  own  process  for  the  enforcement  of 
its  orders  and  judgments. 

The  written  assignment  appears  to  transfer  the  one-half 
interest  in  the  judgment  from  Clarkson  to  McGregor.  No 
point  is  made  that  it  is  insufficient  for  that  purpose.  Sec- 
tion 16  of  our  Civil  Code  provides,  that  in  case  of  a  trans- 
fer of  interest  in  an  action,  it  may  be  continued  in  the 
name  of  the  original  party,  or  the  court  may  allow  the  per- 
son to  whom  the  transfer  is  made  to  be  substituted. 

This  authorized  the  court  to  allow  or  direct  an  execution 
to  issue  in  favor  of  the  assignee  McGregor,  upon  motion 
und  proof  of  the  assignment  of  the  judgment ;  and  there 
was  no  error  in  the  court  sustaining  that  part  of  the  motion. 
The  counsel  for  appellants  attach  to  the  transcript  herein 
the  record  of  a  suit  in  which  judgment  was  rendered  in 
favor  of  Wells,  Fargo  &  Co.,  against  plaintiff  Clarkson  and 
others  ;  and  their  bill  of  exceptions  shows  that  they  offered, 
in  defending  1he  motion,  to  prove  by  affidavits  that  the 
indebtedness,  on  which  their  judgment  was  rendered,  was 
purchased  before  they  had  any  notice  of  the  assignment 
from  Clarkson  to  McGregor  ;  and  they  file  a  long  brief,  and 
cite  numerous  authorities,  to  show  that  the  assignment  to 
McGregor  was  subject  to  all  set-offs  and  equities  existing 
at  the  time  of,  or  before  notice  of,  assignment,  and  that  the 
sheriff  had  the  legal  power  to  set  off  the  executions.  It  is 
immaterial  in  this  case,  whether  or  not  the  facts  assumed, 
or  positions  taken  by  appellants,  are  correct ;  they  could 
not  be  inquired  into,  on  the  motion  to  annul  the  return  for 


1869.]  McGRKGou  r.  \VELLS,  FAKGO  &  Co.  147 

errors  and  irregularities  appearing  on  the  face  of  the  papers. 
The  record  of  the  case  accompanying  the  transcript  shows 
that  the  judgment  in  the  case  on  which  the  sheriff  set  off 
the  execution  was  not  against  Clarkson  individually,  but 
against  him  and  other  persons,  so  that  the  court  could  not 
have  set  off  the  judgments  on  motion,  but  it  could  only  be 
done  by  suit  in  equity,  showing  insolvency  of  Clarkson,  etc. 
The  doctrine  that  a  sheriff,  under  the  common  law,  without 
any  statute  authorizing  it,  cannot  set  off  executions,  is  too 
well  settled  to  need  discussion.  Many  questions  were  raised 
and  argued  which  would  affect  the  rights  of  the  parties  in 
;i  suit  in  equity,  but  have  no  bearing  on  a  motion  to  annul 
return  of  sheriff  on  face  of  papers. 

The  court,  in  directing  an  execution  to  issue,  ordered  the 
sheriff  to  proceed  and  make  the  money,  levy  on  property 
of  the  defendants,  sell  the  same,  and  pay  the  money  to 
assignees.  The  presumption  is  that  officers  will  do  their 
duty,  and  proceed  according  to  law  ;  and  it  was  erroneous 
to  order  particularly  that  the  sheriff  should  proceed  to  col- 
lect  the  execution,  and  the  manner  in  which  he  should  do 
so,  but  not  such  as  will  reverse  the  order. 

The  order  of  the  court  below  is  affirmed. 

Exceptions  overruled. 

This  cause  was  taken  by  appeal  to  the  supreme  court  of 
the  United  States,  and  the  appeal  was  dismissed  at  the  De- 
cember terra,  1871.  13  Wall.  (U.  S.)  188. 


CASES 
ARGUED  AND  DETERMINED 

IN  TH  K 

SUPREME  COURT 

AX  TH  K 

JANUARY  TERM,  1870,  HELD   IN  VIRGINIA  CITY. 


Present : 

How.  HENRY  L.  WARREN,  CHIEF  JUSTICE. 
How.  HIRAM  KNOWLE8,  ASSOCIATE  JUSTIO*. 


TRAVIS  et  al.,  respondents,  v.  McCoRMioK,  appellant. 

MORTGAGEE    LOSES  LIEN  ON    PERSONAL  PROPERTY   AFTER    DEBT  MATURES.      A 

mortgagee  of  personal  property  loses  his  lien  thereon,  as  against  a  purchaser 
in  good  faith  from  the  mortgagor  in  possession,  after  the  maturity  of  the 
mortgage  debt,  although  the  mortgage  is  good  and  valid  for  one  year  after 
it  is  recorded. 

LACHES  OF  MORTGAGEE  INVALIDATES  HIS  LIEN.  In  this  case,  the  unexplained 
failure  of  the  mortgagees  to  take  possession  of  property,  or  foreclose  their 
mortgage,  two  months  after  the  maturity  of  their  debt,  was  laches,  and 
invalidated  their  lien,  as  against  a  purchaser  in  good  faith. 

DUTY  OF  MORTGAGEES.  The  mortgagees  of  personal  property  should  take  imme- 
diate possession  of  the  same  after  the  maturity  of  their  debt,  or  endeavor 
so  to  do  with  sufficient  diligence. 

Appeal  from  the  Third  District.  Lewis  and  Clarke  County. 

IN  August,  1869,  W.  S.  and  C.  M.  Travis  commenced  this 
action  to  obtain  the  possession  of  a  "red  roan  "  horse.  The 
court,  SYMES,  J.,  sustained  the  plaintiff's  demurrer  to  the 
answer,  and  defendant  appealed. 


1870.]  TRAVIS  v.  McCoKMiCK.  149 

The  pleadings  and  facts  appear  in  the  opinion. 

The  statute  of  the  Territory,  concerning  chattel  mortgages, 
which  is  referred  to  in  the  opinion,  is  as  follows : 

"  SECTION  1.  No  mortgage  on  goods,  chattels  or  personal 
property  shall  be  valid  as  against  the  rights  and  interest  of 
any  third  person,  unless  possession  of  such  personal  prop- 
erty shall  be  delivered  to  remain  with  the  mortgagee,  or  the 
said  mortgage  acknowledged  and  recorded  as  hereinafter 
directed." 

"SEC.  3.  Any  mortgage  of  goods,  chattels  or  personal 
property  so  acknowledged  shall  be  admitted  to  record  by 
the  recorder  of  the  county  in  which  the  mortgagor  shall 
reside  at  the  time  when  the  same  is  made,  acknowledged  or 
recorded,  and  shall  thereupon,  if  bona  fide,  be  good  and 
valid  from  the  time  it  is  so  recorded,  for  a  space  of  time  not 
exceeding  one  year,  notwithstanding  the  property  mort- 
gaged or  conveyed  by  deed  of  trust  may  be  left  in  posses- 
sion of  the  mortgagor.  Provided,  that  such  conveyance 
shall  provide  for  the  property  so  to  remain  with  the  mort- 
gagor." 

CHUMASERO  &  CHADWTCK,  for  appellant. 

The  demurrer  should  have  been  overruled.  The  mortgage 
was  fraudulent  as  to  the  appellant  in  this,  that  the  time  for 
the  taking  of  possession  of  the  mortgaged  property  had 
long  elapsed,  at  the  time  of  the  purchase  thereof  by  appellant, 
and  that  his  title  thereto  had  thereby  become  perfect.  Acts 
J865,  339,  §  3  ;  Hilliard  on  Sales,  126  ;  Acts  1865,  494,  §  15  ; 
Reed  v.  JEames,  19  111.  594 ;  Constant  v.  Matteson,  22  id. 
f>46 ;  Cass  v.  Perkins,  23  id.  382  ;  Funk  v.  Staats,  24  id. 
fi!}I.J ;  Wooley  v.  Fry,  30  id.  58. 

\V.  F.  SANDERS  and  J.  J.  WILLIAMS,  for  respondents. 

A  mortgage  imports  prima  facie  that  vendor  may  keep 
possession  till  breach  of  condition,  and  his  continued  pos- 
session is  no  badge  of  fraud,  arid  raises  no  presumption 
thereof.  Hilliard  on  Sales,  126  ;  Fletcher  v.  Willard,  14 
Pick.  464. 


150  TRAVIS  G.  MoCoKMicK.  [Jan.  T.. 

Tlie  necessity  of  a  record  or  delivery  to  tlie  mortgagee  is 
a  creature  of  the  statute.  At  common  law,  neither  is 
required  to  render  the  mortgage  valid  against  bona  fide 
purchasers  or  attacking  creditors.  1  Pars,  on  Cont.  570. 

This  mortgage  is  valid  under  the  statute.  Acts  1865,  339, 
g  1.  The  answer  does  not  attack  the  acknowledgment  or 
record  of  the  mortgage.  In  these  respects  the  answer  is 
defective,  and  the  demurrer  was  properly  sustained.  The 
mortgage  provides  for  the  property  to  remain  with  the  mort- 
gagor, and  is  good  for  one  year.  The  act  does  not  say  that 
the  mortgage  shall  be  good  for  such  length  of  time  as  it 
provides  that  the  property  may  remain  with  the  mortgagor. 
Acts  1865,  339,  §  3. 

The  rest  of  the  act  has  nothing  to  do  with  the  validity  of 
mortgages.  What  does  the  statute  require?  Section  1, 
not  3,  tells  what  mortgages  are  invalid.  The  delivery  was 
not  had  in  this  case.  The  complaint  brings  the  respond- 
ents under  the  other  alternative,  which  is  not  attacked  by 
the  answer.  Non-delivery  after  May  1,  1869,  is  the  ground 
of  the  defense.  Wherefore,  the  answer  is  bad.  Voorhies' 
Code,  537,  note  a;  7  Abb.  N.  Y.  Dig.  123,  §§  11,  12. 

WARREN",  C.  J.  The  complaint  in  this  cause  alleges  that 
W.  S.  Hamilton  and  T.  P.  Ames  executed  their  promissory 
note  in  favor  of  plaintiffs  below,  bearing  date  December  31, 

1868.  and  payable  May  1.  1869  :  and  that,  for  the  purpose 
of  securing  payment  of  the  same,  William  Hamilton.  T.  P. 
Ames  and  J.  A.  Amos  executed  a  chattel  mortgage  of  the 
same  date,  which  was  duly  acknowledged,  and  was  filed  for 
ivcord  and  recorded  in  the  recorder's  office  of  Lewis  and 
Clarke  county,  on  January  1.  1869.     That  the  defendant 
below    about   April    25,    1869,   obtained  possession  of   the 
mortgaged  property,  and  that  tlie  plaintiffs,   on   July  20, 

1869.  and  before  commencement  of  this  suit,  demanded  of 
him  possession  of  the  same,  which  was  refused. 

The  answer  admits  the  execution  of  the  note  and  mort- 
gage, as  set  forth  in  the  complaint,  and  avers  that  by  the 
terms  of  the  mortgage  it  \vas  provided  tit  at  the  property 


1870.]  TKAVIS  «.  McCouMiCK.  Ifil 

should  remain  in  the  possession  of  the  mortgagors  until  the 
maturity  of  the  note  ;  that  the  mortgagors  were  permitted 
by  the  mortgagees,  the  plaintiffs  below,  to  remain,  and  did 
in  fact  remain  in  possession  of  the  property  long  after 
maturity  of  the  note,  and  until  July  1,  1869,  at  which 
date  the  defendant  below  in  good  faith  purchased  the  mort- 
gaged property  of  the  mortgagors  for  a  valuable  considera- 
tion. 

To  this  answer  the  plaintiffs  demurred  for  insufficiency, 
which  demurrer  was  sustained  by  the  court  below,  and 
thereupon  judgment  was  entered  for  plaintiffs,  from  which 
judgment  the  defendant  appeals. 

The  demurrer  admits  the  facts  stated  in  the  answer,  and 
the  only  question  raised  relates  to  the  construction  to  be 
given  to  the  act  of  the  legislative  assembly  concerning  chat- 
tel mortgages,  approved  December  31,  1864.  The  appel- 
lees claim  that  the  mortgage  in  question  having  been  exe- 
cuted, acknowledged  and  recorded  in  compliance  with  that 
act,  and  providing  by  its  terms  that  the  possession  of  the 
property  might  remain  with  the  mortgagors,  under  the  act 
in  question,  was  valid  as  against  third  persons  for  the  period 
of  one  year  from  the  time  of  record,  without  reference  to 
the  time  of  maturity  of  the  mortgage  debt,  or  to  the  pro- 
vision contained  in  the  instrument  in  regard  to  possession 
of  the  property.  This  is  not  the  proper  construction  of 
the  act.  Thf  parties  themselves  fixed  the  period  by  the 
terms  of  the  mortgage,  during  which  the  mortgagors  might 
retain  possession  of  the  mortgaged  property,  and  it  became 
the  duty  of  the  mortgagees  to  take  immediate  possession  of 
the  property,  or  endeavor  so  to  do,  at  the  expiration  of  the 
period  limited,  with  all  due  promptitude  and  diligence. 
By  a  failure  in  so  doing  they  lost  their  lien  as  against  a  pur- 
chaser in  good  faith  from  the  mortgagors  in  possession. 

\Vhat  constitutes  sufficient  diligence  is  a  mixed  question 
of  la\v  and  fact,  and  must  depend  upon  the  particular  cir- 
cumstances of  each  case,  but  in  this  instance  the  unex- 
plained fail nre  of  the  mortgagees  to  take  possession  of  thu 
property  or  to  foreclose  their  mortgage  for  two  months  after 


152  LOEB  v.  KAMAK.  [Jan.  T., 

maturity  of  their  debt,  as  averred  in  the  answer,  we  hold  to 
be  such  laches,  amounting  to  fraud,  as  to  invalidate  their 
lien  as  against  the  appellant. 

The  court  below  erred  in  sustaining  the  demurrer  to  the 
answer,  and  in  rendering  judgment  for  the  plaintiffs  below. 

The  judgmenc  is  reversed  and  the  cause  remanded. 

Exceptions  sustained. 

KNOWLES,  J.,  concurred. 

At  the  trial  of  this  action  in  December,  1869,  the  plain- 
tiffs obtained  judgment  and  the  defendant  appealed  to  this 
court.  See  p.  347. 


LOEB  et  al.,  appellants,  v.  KAMAK  et  al.,  respondents 


—  amount  of  damages  in  complaint  not  material.  The  amount  of 
damages  claimed  in  a  complaint  is  not  a  material  averment  under  the  civil 
practice  act  of  this  Territory.  The  plaintiff  can  recover  the  damages  he 
proves. 

DAMAGES  —  profits  on  resale  of  goods  too  remote.  The  profits  which  might  have 
been  made  by  the  resale  of  goods  are  too  remote  to  sustain  an  action  for 
specific  damages. 

Appeal  from  Third  District,  Lewis  and  Glarke  County. 

LOEB  and  another  brought  this  action  to  recover  $3,000  as 
damages,  and  obtained  a  verdict  for  $700.  The  plaintiffs 
then  moved  for  a  judgment  for  $3,000  non  obstante  veredicto. 
The  motion  was  overruled  by  the  court,  SYMES,  J.,  and  the 
plaintiffs  appealed. 

The  opinion  contains  the  facts. 

CHUM  VSERO  &  CHAD  WICK,  for  appellants. 

The  complaint  alleged  fraud  on  the  part  of  respondents, 
and  damages  in  the  sum  of  $3,000.  The  answer  denied 
fraud,  but  did  not  deny  the  allegations  of  the  complaint  as 
to  the  damages.  On  the  issue  of  fraud,  the  jury  found  for 


1870.]  LOEB  v.  KAMAK.  163 

ths  appellants  and  assessed  their  damages  at  $700.  No  evi- 
dence on  behalf  of  appellants  or  respondents  as  to  amount 
of  damages  was  introduced.  After  the  rendition  of  the  ver- 
dict and  before  the  entry  of  judgment,  the  appellants  moved 
for  judgment  for  $3,000,  non  obstante  veredicto,  on  the  fol- 
lowing ground  :  That,  as  the  issue  of  fraud  was  for  the 
appellants,  and  there  was  no  denial  in  the  answer  of  the 
amount  of  damages,  the  assessment  of  the  same  for  less 
than  the  amount  averred,  or  at  all,  was  surplusage,  and  the 
court  should  have  entered  judgment  for  $3,000.  Civ.  Prac. 
Act,  §§  65,  66 ;  Toulumne  R.  R.  Co.  v.  Patterson,  18  Cal. 
415  ;  Patterson  v.  Ely,  19  id.  29  ;  Dimick  v.  Campbell,  31 
id.  240. 

LAWRENCE  &  HEDGES,  for  respondents. 
No  brief  on  file. 

KNOWLES,  J.  The  facts  presented  in  the  record  of  this  case 
are  as  follows :  The  appellants  purchased  of  the  respond- 
ents a  certain  stock  of  goods.  The  appellants  allege,  in  their 
complaint,  that  the  respondents  made  false  and  fraudulent 
representations  as  to  what  said  stock  of  goods  consisted 
of,  in  this :  That  they  represented  that  there  was  in  said 
stock  three  hundred  and  fifty  beaver  cloth  suits  of  clothing, 
and  that  the  said  stock  of  goods,  in  fact,  contained  but  fifty- 
nine  of  said  beaver  cloth  suits ;  that  appellants,  relying 
upon  these  representations  of  respondents,  purchased  said 
stock  of  goods  ;  that  respondents  have  failed  to  deliver  said 
whole  number  of  beaver  suits  ;  that  appellants  have  been 
deprived  of  said  goods,  and  of  the  profits  which  they  might 
have  made  by  the  re-sale  of  the  same,  whereby  appellants 
have  been  damaged  in  the  sum  of  S3, 000.  The  complaint 
makes  out  a  case  for  damages  for  false  and  fraudulent  rep- 
resentations, as  to  the  contents  of  a  stock  of  goods. 

The  respondents,  in  their  answer,  deny  the  false  and 
fraudulent  representations,  but  fail  to  deny  the  amount  of 
damages  claimed  by  appellants  in  their  complaint. 

VOL.  I.— 20. 


154  LOEB  t).  KAMAK.  [Jan.  T., 

The  cause  was  tried  by  a  jury,  who  returned  a  verdict  for 
appellants,  and  assessed  their  damages  at  $700. 

The  attorneys  for  the  appellants  moved  for  a  judgment 
for  the  sum  of  $3,000,  in  accordance  with  the  uncontroverted 
allegation  in  the  complaint,  claiming  damages  in  that 
sum. 

It  is  contended,  by  the  appellants,  that  the  only  issues 
presented  in  the  case  were,  whether  the  respondents  had 
made  these  false  and  fraudulent  representations,  and  the 
appellants  purchased  the  goods  upon  such  representa- 
tions ;  that  the  amount  of  damages  was  admitted  by  the 
record,  and,  hence,  not  a  subject  for  the  consideration  of  a 
jury ;  that  the  allegation  claiming  the  amount  of  damages 
was  a  material  averment  in  the  complaint,  and  that,  by  the 
provisions  of  our  practice  act,  every  material  allegation  not 
specifically  controverted  by  the  answer  must,  for  the  pur- 
poses of  the  action,  be  taken  as  true. 

This  presents  to  us  the  question  for  our  consideration  in 
this  case.  If  this  is  a  material  averment  within  the  mean- 
ing of  the  practice  act,  in  the  complaint,  then  undoubtedly 
the  position  taken  by  the  appellants  is  correct.  If  it  is  not  a 
material  averment  within  the  meaning  of  that  act,  then  they 
are  wrong,  and  no  error  was  committed  by  the  court  below. 

At  common  law  every  material  allegation  in  the  declara- 
tion, not  put  in  issue  by  the  plea  for  the  purposes  of  the 
action,  was  taken  as  true.  The  failure,  however,  to  plead 
to  the  declaration  did  not,  in  that  practice,  admit  the 
correctness  of  the  amount  of  damages  claimed. 

The  ad  damnum  clause  of  a  common-law  declaration,  in 
which  the  amount  of  damages  was  specified,  was  consid- 
ered only  a  formal  allegation,  and  the  objection  for  an}r 
defect  in  it  could  be  taken  only  by  a  special  demurrer.  The 
amount  of  damages  which  the  plaintiff  could  recover  de- 
pended upon  the  proof  adduced  upon  the  trial.  A  party 
could  not  recover  more  damages  than  he  claimed,  but  no 
matter  how  much  was  claimed,  he  could  not  recover  more 
than  the  proof  showed  he  was  entitled  to.  The  court  conld 
assess  the  damages  or  call  upon  a  jury  to  assess  them. 


1870.]  LOEB  c.  KAMAK.  IfiE 

Has  this  been  changed  by  the  Code  ?  Has  the  Code  made 
the  «<:Z  dciinnuin  clause  of  a  declaration  a  material  averment  ? 
Is  it  necessary  to  state,  as  one  of  the  facts  constituting  a 
cause  of  action,  the  amount  of  damages  sustained.  If  so, 
then  under  the  Code,  should  the  complaint  fail  to  set  forth  the 
amount  of  damages  sustained,  a  general  demurrer  to  the 
complaint  that  it  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action  would  be  sustained.  Such  practice,  how- 
ever, we  hold,  would  not  be  correct.  If  a  complaint  sets 
forth  facts,  showing  that  a  party  has  been  injured,  the  law 
presumes  that  he  has  been  damaged  to  some  extent.  If  he 
does  not  specify  the  amount  of  damages  sustained,  he  will 
be  entitled  to  nominal  damages.  A  party  need  not  allege 
what  the  law  implies.  If  the  amount  of  damages  or  the 
debt  claimed  was  a  material  averment,  then  an  answer  tra- 
versing this  allegation  would  raise  a  material  issue.  Yet  it 
has  been  held  repeatedly,  since 'the  adoption  of  the  Code, 
that  such  a  traverse  raised  no  material  issue.  The  Code,  in 
prescribing  the  requisites  of  a  complaint,  gives  as  the  third  : 
"A  demand  of  the  relief  the  plaintiff  claims  ;  if  the  recov- 
ery of  money  or  damages  be  demanded,  the  amount  thereof 
shall  be  specified." 

This  clause  the  authors  of  our  Code  intended  as  a  substi- 
tute for  the  ad  dammim  and  concluding  clause  of  a  common- 
law  declaration,  and  the  prayer  for  relief  in  a  bill  in  equity. 
The  allegation  of  damages,  in  the  complaint  in  this  cause, 
is  substantially  the  ad  damnum  clause  of  common-law 
declaration.  True,  there  is  a  demand  for  relief  in  another 
clause.  The  crowding  into  a  complaint  unnecessary  allega- 
tions, however,  will  not  make  them  material.  To  give  any 
other  construction  to  this  averment,  in  the  pleading  under 
consideration,  would  render  certain  portions  of  our  Code 
meaningless. 

Section  inn  of  the  Code  provides,  that  upon  failure  to 
answer  ''in  an  action  arising  vpon  Contract  for  the  direct 
payment  of  money  or  damages  only."  the  clerk  may  enter 
judgment  for  the  amount  claimed  in  the  summons. 

In  actions  not  upon  contract,  for  the  recovery  of  damages 


156  LOEB  v.  KAMAK.  [Jan.  T.. 

in  whole  or  in  part,  the  court  may  order  the  damages  assessed 
by  a  jury. 

The  plaintiff  (no  answer  being  filed  at  the  expiration  of 
the  time  prescribed  by  law  for  defendant  to  file  his  answer) 
is  entitled  to  a  default.  A  default  admits  every  material 
allegation  in  a  complaint,  as  effectually  as  the  failure  to 
traverse  any  material  specific  allegation  in  the  complaint,  by 
the  answer,  admits  that  allegation.  If  the  damages  claimed 
is  a  material  averment  in  the  complaint,  then  a  default 
admits  its  truth  ;  and  why  is  a  court  given  authority  to 
have  the  damages  assessed  by  a  jury?  The  admission,  if 
one,  is  of  record,  and  more  binding  than  the  verdict  of  a 
jury.  The  only  answer  that  we  can  conceive  to  this  is,  that 
the  framers  of  our  Code  did  not  consider  the  averment  of 
damages  sustained  in  a  complaint  a  material  averment,  but 
only  the  moneyed  relief  for  the  wrongs  averred. 

The  case  of  Patterson  v.  Ely,  19  Cal.  28,  cited  by  the 
counsel  for  appellants,  is  not  in  point.  That  was  an 
action  of  ejectment,  and  for  rents  and  profits  for  the  prem- 
ises during  the  period  the  defendant  occupied  them.  The 
plaintiff  alleged  the  value  of  rents  and  profits,  as  it  was 
necessary  for  him  to  do.  The  law  would  not  presume  that 
the  rents  and  profits  were  of  any  value,  unless  they  were 
alleged.  The  defendant  failed  to  deny  the  value  of  the 
rents  and  profits,  and  admitted  the  truth  of  the  allegation, 
as  much  as  if  in  an  action  to  recover  the  value  of  goods, 
wares  and  merchandise,  the  plaintiff  should  have  alleged 
the  value  of  the  goods,  and  the  defendant,  should  he  fail 
to  deny  the  value,  would  admit  the  value  alleged.  The 
allegation  of  damages  in  the  complaint  cannot  be  construed 
into  an  allegation  of  the  value  of  the  beaver  suits  not  fur- 
nished, and,  as  we  view  this  action,  it  was  not  necessary  to 
allege  the  value  of  the  beaver  suits.  Their  value  could  be 
proven,  to  show  the  damages  sustained  by  the  false  and 
fraudulent  representations  ;  neither  is  this  allegation  of  any 
force,  if  it  can  be  construed  as  an  allegation  for  specific 
damages  for  the  profits  the  plaintiff  might  have  gained  by 


1870.]  LOEB  v.  KAMAK.  167 

the  re-sale  af  said  goods.     Such  a  ground  for  specific  dam- 
ages is  too  remote. 

For  the  foregoing  reasons,  the  judgment  of  the  court 
below  is  affirmed. 

Exceptions  overruled. 

WARREN,  C.  J.,  concurred. 


CASES 
ABGUED  AND  DETERMINED 

IN    THE 

SUPREME  COURT 

AT   THE 

TERM,    1870,    HELD    IN    VIRGINIA   OITT 


Present  : 

HON.  HENRY  L.  WARREN,  CHIEF  JUSTIOB. 
HON.  HIRAM  KNOWLES, 


HON.  GEORGE  G.  SYMES,  r  JusTICBS- 


McOoRMiCK,  respondent,  v.  LARGEY  et  al.,  appellants. 

PARTNERSHIP —  no  accounting  necessary  if  profits  are  not  denied.  In  an  action 
to  recover  a  certain  sum  as  the  share  of  the  profits  of  a  partnership  transac- 
tion, a  reference  or  accounting  is  not  necessary,  if  the  answer  does  not  deny 
that  such  profits  were  made. 

DEPOSITION—  when  certificate  is  insufficient.  The  certificate  of  a  deposition 
which  does  not  state  that  the  witness  was  sworn  before  giving  his  evidence, 
ov  that  it  was  read  to.  or  corrected  by,  the  witness,  is  insufficient. 

DEPOSITION  TAKEN  BY  NOTARY  prrnLir  OF  A  STATK.  A  deposition,  which  has 
been  taken  by  a  notary  public  in  any  State,  cannot  be  read  in  evidence  in 
the  courts  of  this  Territory. 

PRACTICE  —  presumption  in  favor  of  rulinri  of  court  below.  If  the  transcript 
does  not  contain  the  certificate  of  a  deposition,  this  court  will  presume  in 
favor  of  the  court  below  that  such  certificate  is  insufficient,  althoiigh  the 
clerk  says  in  a  note  in  the  transcript,  "  Here  follows  the  proper  certificate.'1 

DEPOSITION  —  narrative,  form.  A  deposition,  which  is  taken  in  the  narrative 
form,  is  legal. 


1870.]  McCOK.MICK  V.  L.UiUEY. 

Appeal  from  the  Ililrd  District,  Lewis  and  Clarke  County. 

THIS  action  was  tried  in  the  district  court  in  Lewis  and 
Clarke  county,  in  April,  1870,  and  the  jury  returned  a  ver- 
dict for  McCorrnick  for  $5,843.75,  on  which  the  court  en- 
tered judgment.  During  the  trial  the  defendants  offered  in 
evidence  the  depositions  of  S.  B.  Rice  and  L.  S.  Wild. 
The  plaintiff  moved  to  suppress  the  portions  of  the  same 
that  were  taken  in  narrative  form.  The  defendants  also 
offered  in  evidence  the  deposition  of  S.  A.  Willey.  The 
plaintiff  moved  to  suppress  this  deposition,  because  it  was 
taken  by  a  notary  public  in  the  State  of  Vermont,  on  Feb- 
ruary 18,  1869.  The  court,  KNOWLES,  J.,  sustained  both 
motions,  and  defendants  excepted. 

The  other  facts  are  stated  in  the  opinion. 

WORD  &  SPRATT,  for  appellants. 

The  pleadings  do  not  support  the  judgment.  It  is  a  rule 
in  chancery,  not  affected  by  our  Code,  that  no  relief  can  be 
granted  for  matters  not  charged  in  the  complaint,  although 
they  may  be  apparent  from  some  parts  of  the  pleadings 
and  evidence.  The  only  issue  submitted  to  the  jury  was 
this:  Whether  or  not  a  partnership  existed  between  tin- 
parties?  When  they  found  this  issue  their  power  ceased. 
Their  finding  for  the  sum  of  $5,843.75  was  outside  of  this 
issue  and  pleadings,  and  absolutely  void.  8  Abb.  Dig.  368  ; 
Ktlsey  v.  Western,  2  Comst.  506  ;  Bailey  v.  Ryder,  0 
Seld.  363. 

The  court  erred  in  not  disregarding  that  portion  of  the 
verdict  which  found  for  plaintiff  for  85,843.75.  It  should 
have  ordered  an  account  to  be  taken  of  the  partnership 
dealings  between  the  plaintiff  and  defendant,  Largey,  iu 
accordance  with  the  prayer  of  the  complaint  and  practice 
in  courts  of  equity. 

The  court  erred  in  suppressing  the  depositions  of  Willey, 
Rice  and  Wil.l,  and  thereby  excluding  material  evidence 
for  appellants'  defense.  Carpenter  v.  Morris,  'JO  Cal.  437  ; 
Merle  \.  MaltJiews,  26  id.  467;  Janson  v.  Brooks.  29  id. 
214  ;  1  Greenl.  Ev..  §§  320,  390. 


160  McCoRMiCK  0.  LARGER.  [Aug.  T., 

Appellants'  counsel  also  cited  the  following  authorities  in 
reply  to  those  relied  on  by  respondent :  Civil  Prac.  Act, 
§§  322  to  326  ;  Harper  v.  Minor,  27  Gal.  107 ;  Lucas  v.  San 
Francisco,  28  id.  591 ;  Solomon  v.  Reese,  34  id.  28 ;  Cowing 
v.  Rodgers,  34  id.  648 ;  Putnam  v.  Samplin,  36  id.  151 ; 
Sharp  v.  Daugherty,  33  id.  505. 

CHUMASERO  &  CHADWICK  and  WOOLFOLK  &  TOOLE,  for 
respondent. 

The  respondent's  right  to  one-half  of  the  profits  was  de- 
nied in  the  answer,  but  the  amount  of  the  profits  is  not 
denied  ;  it  is  therefore  admitted.  No  accounting  was  neces- 
sary under  the  pleadings.  When  the  jury  found  that  the 
respondent  was  entitled  to  one-half  of  the  profits,  the  court 
was  authorized  to  enter  j  udgment. 

There  was  no  motion  for  a  new  trial  in  the  court  below, 
and  no  exceptions  were  taken  to  the  findings,  which  are  there- 
fore conclusive.  This  court  cannot  go  beyond  the  judgment 
roll  and  the  decree  must  stand,  if  the  findings  support  it. 
Duff  v.  Fisher,  15  Gal.  378  ;  James  v.  Williams,  31  id.  211 ; 
Lucas  v.  San  Francisco,  28  id.  591 ;  2  Danls.  Ch.  Pr.  1330, 
1365  ;  1  Barb.  Ch.  Pr.  446,  465. 

No  finding  as  to  the  amount  due  respondent  was  neces- 
sary to  sustain  the  judgment.  No  issue  being  made  thereon 
by  the  answer,  the  fact  is  immaterial  and  cannot  be  assigned 
as  error.  Swift  v.  Muygridge,  8  Cal.  445  ;  Fox  v.  Fox,  25 
id.  587. 

The  suppression  of  the  depositions  was  not  error.  The 
so-called  depositions  of  Rice  and  Wild  were  simply  affida- 
vits, and  could  not  be  read  as  evidence  upon  the  trial.  The 
deposition  of  Willey  was  not  taken  according  to  the  statute. 
Civ.  Pr.  Act,  §§  404,  405  ;  Acts  1869,  66,  §  17. 

SYMES,  J.  This  was  an  action  brought  by  plaintiff  against 
the  defendant,  for  one-half  the  profits  arising  from  the  ful- 
filling of  a  contract  for  supplying  forage  to  the  government. 
The  complaint  alleged  that  defendant  Largey  entered  into  a 
contract  with  N.  S.  Constable,  United  States  quartermaster, 


1870.]  McCoRMicK  v.  LABGEV.  101 

to  deliver  several  thousand  pounds  of  oats  and  hay  to  the 
military  posts  of  forts  Shaw  and  Ellis  ;  that  plaintiff  became 
jointly  interested  with  him  in  said  contract,  and  that  the 
profits  arising  from  said  contract  were  $11,687.40,  and  de- 
manded judgment  for  half  that  amount. 

Largey,  only,  appeared  and  answered,  and  denied  that 
plaintiff  was  jointly  interested  with  him  in  the  contract,  and 
admitted  that  he  had  agreed,  on  condition  that  plaintiff 
would  procure  and  execute  the  necessary  bond  to  the  United 
States  quartermaster,  for  the  faithful  performance  of  the 
contract,  and  devote  time  and  attention  to  buying  grain,  and 
furnish  some  of  the  money  to  purchase  same,  he  might 
become  jointly  interested  with  him,  and  alleged  that  plain 
tiff  did  not  furnish  the  bond  or  perform  said  conditions, 
and  denied  his  right  to  any  interest  in  the  profits. 

The  case  was  tried  at  the  March  term,  1869,  and  a  verdict 
found  for  plaintiff  for  the  sum  of  85,843.75,  and  the  jury 
specially  found  that  plaintiff  and  defendant  Largey  entered 
into  a  copartnership  to  fulfill  the  contract  Largey  had  made 
to  supply  the  government  with  forage,  and  that  said  plain- 
tiff and  defendant  Largey  sublet  said  contract  to  defendants, 
Kirkendale  arid  Me  Ado  w,  to  be  by  them  performed. 

The  errors  assigned  are:  1.  That  the  court  erred  in  not 
disregarding    that    portion    of    the    verdict    which    found 
$5,843,75  for  plaintiff,  and  ordering  an  account  to  be  taken 
of  the  partnership  dealings.     2.  That  the  court  erred  in  sup 
pressing  depositions  offered  in  evidence  by  defendants. 

The  amount  of  profits  alleged  by  plaintiff  to  have  resulted 
from  the  joint  or  copartnership  transaction  was  not  denied 
in  the  answer.  The  only  issue  raised  by  the  pleadings  was, 
whether  or  not  plaintiff  and  defendant  Largey  were  jointly 
interested  in  the  contract,  and  plaintiff  entitled  to  one-half 
the  profits  arising  therefrom.  The  jury  found  specially  for 
the  plaintiff  on  this  issue,  and  found,  further,  in  accordance 
with  allegations  of  complaint,  that  as  partners,  they  sublet 
the  contract  ;  and.  in  the  general  verdict,  found  for  the 
plainiiff  half  the  amount  alleged  in  the  complaint  to  have 
arisen  from  the  joint  transaction.  The  plaintiff  did  not  ask 
VOL.  I.  — 21. 


162          McCoRMiCK  v.  LARGEY.       [Aug.  T., 

for  an  accounting,  but  alleged  a  single  transaction  to  have 
taken  place  between  him  and  defendant ;  that  the  same  was 
entirely  closed ;  that  the  profits  arising  therefrom  amounted 
to  $11,687.50,  and  ask  judgment  for  $5,848.75,  his  share 
under  the  partnership.  Sections  182  and  183  of  the  Civil 
Code  provides  when  a  reference  may  be  ordered,  but  in  no 
case  is  it  mandatory  that  there  shall  be  a  reference.  There 
was  no  occasion  for  a  reference  in  this  case ;  there  were  no 
partnership  or  other  accounts  to  be  examined  ;  there  was  no 
dispute  as  to  the  amount  of  profits  arising  from  the  fulfilling 
of  the  contract.  The  jury,  after  finding  specially  that  the 
parties  were  jointly  interested,  found,  in  their  general  ver 
diet  for  the  plaintiff,  half  the  amount  admitted  to  have  arisen 
from  the  joint  transaction  which  had  been  closed.  The  court 
could  have  rendered  judgment  for  said  amount  on  the  special 
findings  of  the  jury,  and  pleadings,  without  the  genera] 
verdict,  the  amount  not  being  denied  in  the  answer.  Fox 
v.  Fox,  25  Cal.  587. 

The  certificate  attached  to  the  deposition  of  S.  A.  Willey  is 
not  sufficient ;  it  does  not  state  that  the  witness  was  sworn  be- 
fore giving  his  evidence,  nor  that  it  was  read  to  the  witness  or 
corrected  by  him,  and  the  deposition  was  taken  out  of  this  Ter- 
ritory in  the  State  of  Vermont,  by  a  notary  public,  which 
officer  could  not  take  depositions  out  of  this  Territory  to  be 
used  therein  ;  and,  if  empowered,  there  is  no  certificate 
attached  that  he  was  a  notary  public,  duly  commissioned 
arid  qualified  to  act  as  such.  Civil  Code,  §§  404,  405,  408. 
In  the  bill  of  exceptions,  excepting  to  the  suppressing  of 
the  depositions  of  Rice  &  Wild,  there  is  no  certificate  of  the 
officer  attached.  The  clerk  puts  a  note  in  the  transcript,  say- 
ing ;i  here  follows  the  proper  certificate."  but  the  court,  from 
this,  cannot  say  that  there  was  a  proper  certificate,  and 
will  presume,  in  favor  of  the  court  below,  that  there  was 
not, 

The  bill  of  exceptions,  to  suppressing  the  depositions, 
states  that  they  were  objected  to  because  taken  in  the  narra- 
tive form,  and  that  the  court  sustained  this  objection.  \Ve 
•ire  acquainted  with  no  rule  of  law  which  prevents  deposi- 


1870.]  MORGAN  v.  REYNOLDS.  163 

tions  being  taken  in  the  narrative  form.  A  witness  stating 
all  lie  may  know  of  the  matters  in  issue  in  a  case,  in 
answer  to  one  question,  would  be  as  legal  as  if  he  told  it  in 
answer  to  many,  and  better  than  to  allow  numerous  ques- 
tions, which,  although  legal,  may  tend  to  inform  the  witness 
the  answers  sought.  The  court  erred  in  giving  this  as  a 
reason  for  suppressing  the  depositions,  but  the  error  does 
not  affect  the  judgment  from  any  thing  seen  in  the  transcript. 

Exceptions  overruled. 


MORGAN  etal.,  respondents,  v.  HKYXOLDS,  appellant. 

REPLEVIN  —  measure  of  damages  —  interest,  lu  au  action  iu  the  nature  of  re- 
plevin, to  recover  certain  mules  and  harness,  a  party  is  entitled  to  the 
property,  and  the  value  of  its  use,  from  the  time  he  was  deprived  of  it  to 
the  day  of  trial.  Legal  interest  on  their  value,  during  the  period  of  deten- 
tion, is  not  the  measure  of  damages. 

IlKpiiEViN  —  excessive  damages.  In  this  case  the  amount  of  damages  was  not 
excessive. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

Ox  December  4,  1869,  Morgan  and  Embody  commenced 
this  action  to  recover  the  possession  of  two  mules  and  har- 
ness, or  the  value  thereof,  and  "85  for  each  day  the  same 
were  detained,"  and  8100  further  damages.  In  April.  1870, 
the  jury  rendered  a  verdict  for  plaintiffs  for  the  delivery  of 
the  property  valued  at  8-00,  and  also  8204  damages.  Rey- 
nolds obtained  possession  of  the  property  on  November 
30.  1869. 

Defendant  moved  for  a  new  trial  upon  three  grounds : 
misconduct,  of  the  jury,  excessive  damages,  and  insuffi- 
ciency of  the  evidence  to  justify  the  verdict.  The  motion 
was  overruled  by  the  court,  SYMKS,  J..  and  defendant  ap- 
pealed. 

The  other  facts  appear  in  the  opinion. 

>SMITII  &  CULLKN,  for  appellant. 

Ln  an  action,  either  on  contract  or  tort,  damages  can  only 
he  assessed  up  to  the  linn-  of  the  commencement  of  the  suit, 


164  MORGAN  v.  REYNOLDS.  [Aug.  TM 

and  if  the  jury  assess  damages  up  to  the  time  of  the  trial 
of  the  case  it  is  error.  Powers  v.  Ware,  4  Pick.  107  ;  Pierce 
v.  Woodward,  6  id.  207 ;  Leffingwell  v.  Elliott,  10  id.  204. 

Damages  arising  subsequent  to  the  commencement  of  the 
suit  could  only  be  recovered  therein  by  filing  a  supple- 
mental complaint,  Civ.  Prac.  Act,  §67.  When  the  judg- 
ment rendered  is  for  a  larger  sum  than  that  claimed  in  the 
complaint,  it  is  sufficient  ground  for  a  new  trial.  Hilliard 
on  New  Trials,  433,  §  5. 

An  application  for  a  new  trial,  on  the  ground  of  excessive 
damage,  is  most  favorably  considered  in  a  case  for  a  tort 
done  to  property,  when  there  is  a  definite  basis  for  the 
calculation  of  damages.  Hilliard  on  New  Trials,  436, 
§§  14,  16. 

The  measure  of  damages  in  an  action  for  the  recovery 
of  specific  personal  property,  is  the  value  of  the  property 
between  the  taking  of  the  same  and  the  commencement  of 
the  action,  together  with  damages  for  its  detention,  which 
damage  is  the  legal  interest  on  the  value  of  the  property. 
Sedgw.  on  Dam.  582  ;  Nicker  son  v.  Chatterton,  7  Cal.  568  ; 
Seaver  v.  King,  9  id.  562 ;  Morris  on  Replev.  193. 

LAWRENCE  &  HEDGES,  for  respondents. 

No  affidavit  accompanies  the  record  on  appeal  of  any  mis- 
conduct of  the  jury.  Civ.  Prac.  Act,  §  194 ;  Br  anger  v. 
Chevalier,  9  Cal.  362. 

The  evidence  shows  that  the  property  was  detained  one 
hundred  and  thirty  days  ;  that  possession  was  obtained  by 
fraud,  and  held  by  violence  ;  and  that  the  use  of  the  same 
to  respondents  was  worth  $4  and  $5  per  day. 

In  this  action  the  judgment  may  be  for  more  than  the 
value  of  the  property,  if  it  be  within  the  ad  damnum  of 
the  complaint.  The  value  of  the  property  is  only  one 
predicate  of  the  recovery.  CogMll  v.  Boring,  15  Cal.  218. 
Proof  of  damages  in  an  action  sounding  in  tort  may  extend 
to  all  facts  which  occur  and  grow  out  of  the  injury  up  to 
the  day  of  the  verdict.  2  Greeril.  Ev. ,  §§  260,  268, 268a,  C35a. 

Exemplary  damages  may  be  assessed.     Sedgw.  on  Dam. 


.1870.]  MORGAN  v.  REYNOLDS.  165 

515  to  540.  The  judgment  determines  the  time  of  the  deten- 
tion, and  the  damages  sustained.  Civ.  Prac.  Act,  §  177; 
Edgar  McCulcJien,  9  Mo.  768. 

KNOWLES,  J.  This  is  an  action  of  claim  and  delivery  of 
personal  property.  The  plaintiffs  brought  suit  to  recover 
the  possession  of  two  mules  and  harness,  which  they  allege 
the  defendant  wrongfully  and  fraudulently  obtained  posses- 
sion of,  and  unlawfully  detains  the  same  from  plaintiffs' 
possession,  and  for  damages  for  the  unlawful  taking  and 
detention  thereof.  The  case  was  decided  in  the  court  below, 
for  plaintiffs. 

Defendant  moved  for  a  new  trial,  which  was  overruled  by 
the  court,  from  which  ruling  the  defendant  appeals  to  this 
court. 

There  are  only  two  assignments  of  error  discussed  in  the 
brief  of  appellants,  and  these  are  the  only  ones  I  think  it 
necessary  to  consider.  The  h'rst  one  is,  that  the  jury  com- 
mitted an  error  in  estimating  the  amount  of  damages 
awarded  the  plaintiffs,  the  value  of  the  use  of  the  mules 
and  harness,  from  the  date  at  which  the  defendant  obtained 
possession  of  them  to  the  day  of  the  trial  of  the  cause.  I 
do  not  think  this  was  error.  The  plaintiffs  were  entitled  to 
the  value  of  the  use  of  these  mules  and  harness.  It  is  true 
that,  in  actions  in  the  nature  of  trover,  the  value  of  the 
article  converted,  together  with  legal  interest  thereon  from 
the  time  of  conversion,  is  the  true  measure  of  damages.  In 
trover  the  plaintiff  geeks  to  recover  a  moneyed  judgment, 
and  it  would  be  proper  to  allow  him  only  the  value  of  the 
use  of  that  money  which  the  law  declares  to  be  legal  inter- 
est. This  is,  however,  an  action  in  the  nature  of  replevin. 
The  plaintiffs  seek  to  recover,  primarily,  the  speciiic  property 
detained,  and  it  would  seem  to  me  to  be  but  just  that  he 
should  recover  the  value  of  the  use  of  the  property  so  de- 
tained as  compensation,  (fivcnlfaf.  in  his  work  on  Evi- 
dence, vol.  2,  p.  270,  says:  They  (that  is  damages)  should 
be  precisely  commensurate  with  the  injury,  neither  more 
nor  less,  and  this,  whether  it  be  to  his  person  or  estate." 
To  be  sure,  these  damages  must  always  lie  the  natural 


166  MORGAN  v.  REYNOLDS.  [Aug.  T., 

and  proximate  consequence  of  the  wrongful  act  com- 
plained of. 

What  more  proximate  consequence  of  the  wrongful  de- 
tention of  these  mules  can  there  be,  than  that  the  plaintiff 
was  deprived  of  the  use  of  them  ?  It  is  the  immediate  and 
natural  consequence  of  the  detention.  The  defendant  claims 
that  legal  interest,  on  the  value  of  mules  and  harness,  is  all 
that  the  plaintiffs  are  entitled  to  recover.  This  would  be 
an  unjust  rule  When  money  is  sought  it  is  proper  enough. 
It  does  not  wear  out  with  use,  or  grow  old  ;  while  animals 
of  burden  do  both,  and  thus  by  use  their  value  is  being 
constantly  diminished.  The  rule  that  applies  to  an  action 
for  money  should  not  then  apply  in  this  case. 

I  find  in  Sedgwick  on  the  Measure  of  Damages  (pp.  528. 
529)  that  in  Maryland  and  Texas  damages  for  the  value 
of  the  hire  of  slaves  were  awarded  in  similar  actions  to  this. 
And  also  in  note  second,  same  authority,  that  in  the  case  of 
Sutler  v.  MeJirling,  15  111.  488,  the  rule  was  laid  down  that 
in  actions  of  replevin  the  value  of  the  use  of  the  property 
is  the  true  measure  of  damages  and  not  the  value  of  the 
property  alone.  I  am  aware  that  a  different  rule  from  this 
was  expressed  in  Dorsey  v.  Manlove,  14  Cal.  553.  This 
point,  however,  was  not  really  presented  to  that  court  in 
that  case  for  decision.  The  real  question  was,  whether  the 
damages  proved  by  the  plaintiff  were  not  too  remote,  and 
upon  that  point  it  can  unquestionably  be  sustained.  Then- 
is  one  other  consideration  to  be  considered  in  that  case, 
namely,  that  really  the  action  was  more  in  the  nature  of 
trover  than  replevin,  for  it  appears  that  the  defendant  had 
sold  the  horses  in  controversy.  In  trover  the  rule  therein 
declared  is  undoubtedly  correct.  It  was  not  only  proper 
that  the  plaintiffs  should  recover  the  value  of  the  use  of  the 
mules,  but  that  they  should  recover  it  up  to  the  time  of 
trial . 

In  actions  for  the  recovery  of  money  the  plaintiff  always 
recovers  as  damages  the  legal  interest  on  the  money  up  to 
the  time  of  trial.  In  trover  it  is  almost  a  universal  rule  that 
the  plaintiff  recovers  interest  from  the  time  of  conversion 


1870.]  MORGAN  -G.  REYNOLDS.  167 

up  to  the  time  of  trial.  See  Sedgwick  on  Measure  of  Dam- 
ages, 517,  518  and  notes.  The  case  of  Dorsey  v.  Manlove, 
cited  above,  lays  down  the  rule  for  the  measure  of  damages 
as  follows  :  "The  value  of  the  horses  sold  by  the  defendant 
together  with  legal  interest  up  to  the  time  of  trial."  In 
Greenleaf  on  Evidence,  vol.  2,  section  268,  in  treating  gen- 
erally of  trespass,  it  is  said  :  "'And  it  is  further  to  be  ob- 
served that  proof  of  actual  damages  may  extend  to  all  facts 
which  occur  and  grow  out  of  the  injury,  even  unto  the  day 
of  the  verdict."  If  in  actions  of  this  character  the  rule  is 
as  above,  I  cannot  see  why  any  different  rule  should  be 
made  in  replevin.  In  the  Texas  case,  cited  in  Sedgwick  on 
Measure  of  Damages,  referred  to  above,  I  find  the  follow- 
ing :  "  Damages  for  the  hire  should  be  computed  from  the 
rime  of  the  demand  to  the  rendition  of  judgment."  This 
was  an  action  for  the  recovery  of  a  slave  and  for  his  wrong- 
ful detention.  I  do  not  think  there  can  be  much  doubt  of 
this  rule. 

The  second  error  assigned  I  shall  notice  is,  that  the  dam- 
ages were  excessive.  The  evidence  shows  that  the  defend- 
ant wrongfully  got  possession  of  the  mules.  From  the  time 
of  the  getting  possession  until  the  time  of  trial  there  were 
more  than  one  hundred  days.  The  defendant  had  posses- 
sion of  the  mules  all  this  time.  The  only  positive  evidence 
as  to  the  value  of  the  use  of  the  mules,  fixed  it  at  from  $4 
to  85  per  da}-.  The  jury  assessed  the  damages  at  $204. 
They  must  have  estimated  the  value  of  the  use  of  the  mules 
at  less  than  two  dollars  per  day. 

In  the  case  of  Dorsey  v.  Manlove,  referred  to  above,  much 
is  said  in  relation  to  punitive  or  exemplary  damages. 
Without  stopping  to  discuss  whether  they  would  be  al- 
lowed in  such  a  case  as  this.  I  may  say  if  the}'  were  the, 
damages  assessed  by  the  jury,  are  very  moderate,  as  there 
were  many  aggravating  circumstances  connected  with  the 
obtaining  possession  of  the  property  in  dispute  and  thf 
persistent  detention  of  the  same. 

The  judgment  of  the  court  below  is  affirmed. 

Exceptions  overruled 


168  THORP  v.  WOOLMAN.  [Aug.  T. 


THOBP,  respondent,  ».  WOOLMA:N>  appellant. 

STATUTORY  CONSTRUCTION  —  statute  regulating  irrigation  —  award  of  commis- 
sioners void.  The  powers  conferred  on  commissioners  to  apportion  water 
under  the  fourth  section  of  the  act  "  to  protect  and  regulate  the  irrigation 
of  laud  in  Montana  Territory,"  approved  January  12,  1865,  are  judicial,  and 
cannot  be  granted  by  the  legislative  assembly.  The  award  of  such  commis- 
sioners is  void. 

STATUTORY  CONSTRUCTION  —  statute  regulating  irrigation  —  doctrine  of  appropri- 
ation. The  act  regulating  irrigation  in  this  Territory  recognizes  the  doc- 
trine of  the  appropriation  of  water  for  irrigation,  but  limits  the  right  and 
quantity  to  certain  persons. 

RIGHT  OF  FIRST  IXJCATOR  OF  LAND.  Law  and  equity  give  the  first  locator  of 
land  and  claimant  of  water  a  sufficient  quantity  of  water  to  irrigate  hu 
laud. 

Appeal  from  the  Third  District,  Lewis  and  Clarice 
County. 

Iisr  this  action,  Thorp  and  Woolman  filed  their  agreed 
statement  of  facts  in  the  district  court  for  Lewis  and  Clarke 
county,  on  March  14,  1870.  The  attorneys  of  the  parties 
also  filed  a  stipulation  "that  the  above  agreed  statement  is 
made  with  reference  to  the  settled  customs  and  usages  of 
Montana  Territory,  of  which  we  desire  that  the  court  shall 
take  judicial  notice."  On  June  10,  1870,  the  court,  SYMES, 
J.,  signed  a  decree  in  favor  of  Thorp,  and  Woolman  ap- 
pealed. 

Section  4  of  the  act  approved  January  12,  1865,  which  is 
referred  to  by  counsel  and  the  court,  is  as  follows  : 

SEC.  4.  That  in  case  the  volume  of  water  in  said  stream  or 
river  shall  not  be  sufficient  to  supply  the  continual  wants 
of  the  entire  country  through  which  it  passes,  then  the  near- 
est justice  of  the  peace  shall  appoint  three  commissioners, 
as  hereinafter  provided,  whose  duty  it  shall  be  to  apportion, 
in  a  just  and  equitable  proportion,  a  certain  amount  of  said 
water,  upon  certain  alternate  weekly  jdays,  to  different 
localities,  as  they  may  in  their  judgment  think  best  for  the 
interest  of  all  parties  concerned,  and  with  a  due  regard  to 
the  legal  rights  of  all.'' 

The  opinion  contains  the  other  facts. 


1870.]  THOEP  v.  WOOLMAN.  169 

SHOBEB  &  LOWRY,  for  appellant. 

Appellant  relies  upon  the  statute  of  the  Territory.  Acts 
1865,  367,  368,  369. 

WOOLFOLK  &  TOOLE,  for  respondent. 

The  courts  of  the  Territory,  like  those  of  California,  hold 
that  rights  to  water  are  determined  by  priority  of  appropri- 
ation, lias  the  statute  referred  to  by  appellant  changed 
this  rule?  In  controversies  between  minors  and  ranchmen, 
this  doctrine  of  priority  prevails  and  should  be  of  general 
application.  The  appellant's  interpretation  of  this  statute 
makes  prior  appropriation  of  no  avail.  The  whole  of  the 
statute  must  be  construed  together,  and  custom  and  usage 
must  be  considered  to  ascertain  the  intention  of  the  legisla- 
ture. Sedgw.  Stat.  Law,  231  to  239  ;  JacJcson  v.  Gumaer, 
2  Cow.  567;  M^  Keen  v.  Delancy,  5  Cr.  22;  Cullerton 
v.  Mead,  22  Cal.  95. 

Sections  1  and  4  must  be  construed  together.  Can  all 
the  ranchmen  upon  a  stream  insist  that  the  water  thereof 
shall  be  divided  among  all  of  them,  without  regard  to  the 
time  of  their  settlement?  The  water  granted  by  section 
1  of  the  statute  would  be  taken  by  others,  and  the  first 
locator  would  not  have  water  to  the  "full  extent  of  the  soil." 
There  is  nothing  in  section  4  which  provides  that  priority 
shall  not  prevail,  or  that  the  water  shall  be  equally  divided. 
The  commissioners  are  to  apportion  the  water  in  a  "just 
and  equitable  proportion,"  and  with  a  due  regard  to  ''legal 
rights.''  The  object  of  this  statute  was  to  save  litigation 
with  regard  to  water  rights,  and  the  commissioners  are 
made  a  new  tribunal  to  settle  controversies.  The  organic 
act  vests  judicial  power  in  certain  officers.  This  statute 
vests  it  in  commissioners.  Being  dearly  in  violation  of  the 
organic,  act.  it  is  void.  Organic  Act,  §  9  :  People  \,  Collins, 
10  \\Vnd.  5(j;  French  v.  Tvsrftcmnl'Kr.  24  Cal.  518  :  Jturson 
v.  C!ow!c8)  25  id.  5:55  ;  Reed\.  Omnibus  R.  R.  Co.,  33  id. 
212. 

The   court   should   act  as   a   legislator   if  the  statute  is 
ambiguous.     Sedgw.  Statutory  Law,  294. 
VOL.  1  —  22. 


THORP  -c.  WOOL M AN.  [Aug.  T. , 

If  a  statute,  which  confers  a  new  right  and  remedy,  is 
void,  the  right  and  remedy  fall  with  the  statute.  Staff1 
v.  Poulterer.  16  Cal.  515.  and  cases  cited  ;  Almy  v.  Harris. 
6  Johns  175. 

KNOWLES.  J.  This  cause  was  presented  to  the  court 
below  on  an  agreed  statement  of  facts.  It  appears,  from 
this,  that  the  respondent  and  appellant  each  owned  a  ranch 
on  Prickly  Pear  creek.  That  of  the  appellant's  was  higher 
up  the  creek  than  that  of  respondent's.  The  respondent 
first  located  his  ranch,  and,  at  the  same  time,  claimed  three 
hundred  inches  of  water  in  this  creek  for  the  purposes  of 
irrigating  his  land.  In  1869,  owing  to  a  drouth,  this  was 
all  the  water  there  was  in  this  creek,  and  this  much  was 
necessary  to  irrigate  the  land  of  respondent.  The  appel- 
lant then  applied  to  the  nearest  magistrate,  in  accordance 
with  the  provisions  of  "An  act  to  protect  and  regulate  the 
irrigation  of  land  in  Montana  Territory,"  approved  Jan- 
uary, 1865,  for  the  appointment  of  three  commissioners  to 
ipportion  what  water  there  was  in  the  creek  between  him 
ind  respondent.  This  commission  met,  and  awarded  one- 
half  of  the  water  to  appellant,  leaving  the  respondent  the 
other  half. 

The  respondent  asks  a  decree  against  the  appellant  for 
three  hundred  inches  of  water.  The  case  may  be  said  to 
be  an  action  to  quiet  title,  presented  to  the  court  upon  these 
facts.  The  court  below  gave  judgment  to  the  respondent 
for  three  hundred  inches  of  water.  From  this  judgment 
the  appellant  appeals  to  this  court. 

The  first  question  presented  is  this  award  of  the  commis 
sion.  The  powers  given  this  commission  by  the  act  under 
which  they  conducted  their  proceedings  are  clearly  judicial. 
They  are  empowered  by  it  to  apportion  the  waters  in  a  just 
and  equitable  proportion.  This  required  them  to  determine 
what  was  just  and  equitable  between  these  parties.  In  the 
next  place  the  apportionment  was  to  be  made  with  a  due 
regard  to  the  legal  rights  of  all.  This  required  of  them  tc 
determine  what  these  legal  rights  were.  The  organic  act  cf 


J870.]  THORP  v.  WOOLM  AX  171 

this  Territory,  which  is  its  fundamental  law,  limits  the 
powers  of  legislation,  vests  judicial  power  in  a  supreme 
;-ourt,  district  courts,  probate  courts,  and  in  justices  of  the 
peace.  No  tribunal  which  does  not  belong  to  one  of  these 
classes  is  legal.  As  this  commission  cannot  claim  to  belong 
to  either  one  of  these,  it  was  a  tribunal  exercising  judicial 
authority  without  legal  warrant,  and  its  acts  are  void.  The 
appellant  gained  no  rights  whatever  by  virtue  of  this  award. 

It  is  not  necessary  for  the  court  to  determine,  in  this  case, 
whether  or  not  the  doctrine  of  appropriation  applies  to 
ranchmen  as  well  as  to  miners,  concerning  water  rights, 
for  the  statement  of  facts  shows  that  the  ranch  of  appellant 
was  above  that  of  the  respondent,  and  that,  at  the  time  this 
dispute  arose,  three  hundred  inches  of  water  was  flowing 
down  the  creek  by  appellant's  ranch,  which  clearly  indi- 
•  •ates  that  the  water  had  not  been  taken  out  of  the  creek 
above  it.  As  a  riparian  proprietor  the  respondent  would 
be  entitled  to  have  the  waters  of  the  creek  flow  down  its 
uncustomed  and  natural  channel  undiminished  in  quantity, 
and,  below  appellant's  ranch,  could  divert  the  same  for 
purposes  of  irrigation  as  against  him.  The  counsel  for 
appellant,  in  their  brief,  say  they  claim  their  rights  by  virtue 
<>!'  the  above  statute.  There  are  many  reasons  for  holding 
that  this  very  statute  recognizes  or  establishes  the  doctrine 
"f  appropriation  of  water  for  irrigation,  limiting,  however, 
the  right  to  appropriate  to  persons  owning  land  upon  the 
banks  of  the  stream  from  which  the  same  is  taken,  and 
also  limiting  the  quantity  of  water  he  can  appropriate  to 
what  is  necessary  to  irrigate  his  land.  The  permission 
given  by  that  act  to  take  water  out  of  its  natural  channel 
for  purposes  of  irrigation,  where  it  damages  land  holders 
l»elow  the  point  where  the  water  is  diverted,  is  incompatible 
with  the  common-law  doctrine  in  the  case  of  riparian  pro- 
prietors. 

Section  4  of  the  act  T  do  nor  think,  in  any  way,  mili- 
tates against  this  view.  Any  tribunal,  governed  by  the 

*  •/ 

established  principles  of  law.  making  an  apportionment  of 
water  in  accordance  with  what  is  just  and  equitable,  would 


172  GERBER  v.  STUART.  [Aug.  T.. 

be  compelled  to  hold  that  the  one  who  first  located  the  land, 
and  claimed  the  water,  was  entitled  to  sufficient  to  irrigate 
his  land  ;  for  equity  declares  that  he  who  is  first  in  time  is 
first  in  right. 

In  this  case  the  respondent  was  first  in  time,  and,  giving 
the  construction  to  the  statute  indicated  above,  under  it  he 
would,  undoubtedly,  be  entitled  to  the  water  in  dispute. 

For  these  reasons  the  judgment  of  the  court  below  is 
affirmed,  with  costs. 

Exceptions  overruled. 


GERBER,  respondent,  v.  STUART  et  al.,  appellants. 

MAKER  OF  PROMISSORY  NOTE — proof  of  agency  —  intention  of  parties.  In  an 
action  against  a  person  who  signed  a  promissory  note,  "  Jas.  Stuart,  Gen. 
Mang.  &  Supt.  St.  L.  &  M.  M.  Co.,"  the  defendant's  personal  liability  will 
not  be  presumed;  and  he  can  introduce  evidence  showing  that  he  made  the 
note  for  the  mining  company,  of  which  he  was  the  agent,  and  that  it  was 
the  intention  of  all  the  parties  that  the  company  should  pay  the  note,  and 
that  he  was  not  to  be  held  liable  thereon. 

PAROL  CONTRACT — name  of  principal.  The  name  of  the  principal  need  not 
appear  in  the  body  of  a  parol  contract. 

Appeal  from  tlie  Third  District,  Lewis  and  Clarke  County. 

ON  June  25,  1869,  Gerber  commenced  this  action  against 
Saunders  and  Stuart,  upon  a  promissory  note.  Stuart 
filed  a  separate  answer  on  July  12,  18G9.  On  motion  of  the 
plaintiff,  the  court,  WARREN,  J.,  struck  out  parts  of  this 
answer.  On  July  16, 1869,  Stuart  filed  his  amended  answer. 
On  motion  of  the  plaintiff,  the  court  ordered  parts  of  the 
same  to  be  struck  out.  On  July  19,  1869,  Stuart  filed  his 
second  amended  answer.  The  plaintiff  then  moved  to  strike 
this  answer  from  the  files,  and  assigned  among  other  rea- 
sons therefor,  that  the  answer  was  sham  and  irrelevant  and 
no  defense.  The  court  sustained  the  motion  and  rendered 
judgment  for  plaintiff  for  $5,481,  and  Stuart  appealed. 

The  pleadings  are  contained  in  the  opinion. 


1870.]  GERBER  v.  STUART.  173 

WOOLFOLK  &  TOOLE,  for  appellants. 

The  court  erred  in  striking  out  the  first  and  second  answers 
of  Stuart.  An  agent  is  not  liable  personally  in  contracts  not 
under  seal,  where  the  name  of  the  principal  and  fact  of 
agency  are  disclosed,  however  informally  it  may  be  ex- 
pressed. If  the  principal's  name  does  not  appear,  it  may 
be  proved  that  the  part}r  dealing  with  the  agent  knew  the 
principal.  Sayre  v.  Nichols,  7  Cal.  542  ;  Brockway  v.  Allen, 
17  Wend.  40;  Story's  Agency,  §  160  a;  2  Am.  Lead.  Gas. 
380;  Story's  Prom.  Notes,  §  69. 

Where  the  signature  of  the  party  indicates  that  he  w*> 
signing  for  another,  although  it  be  the  apparent  obligati 
of   the  agent,  parol  evidence  is  admissible  under  modern 
authorities  to  establish  the  liability  of  the  principal  and 
release  the  agent.     Brannan  v.  Mesick,  10  Cal.  95 ;  Rich- 
ardson v.  Scott  River  W.  &  M.  Co.,  22  id.  150 ;  Ang.  &  A 
Corp.,  §  296. 

An  agent  of  a  corporation  sued  on  a  note  can  show  by 
evidence  that  the  credit  was  given  to  the  corporation  and 
not  himself.  2  Am.  Lead.  Cas.  632. 

An  agent  having  authority  to  bind  his  principal,  and 
executing  this  authority,  is  not  personally  liable.  The  facts 
set  up  in  the  answer  render  the  corporation  liable  to  respond- 
ent, and  consequently  release  the  agent.  Ang.  &  A.  Corp., 
§  296. 

Whenever  a  state  of  facts  would  maintain  an  action  in 
equity,  the  same  facts  can  be  pleaded  as  a  defense  under 
our  practice.  If  Stuart  is  not  permitted  to  prove  the  facts 
set  up  in  his  first  and  second  answers,  the  express  agree- 
ment of  the  parties  is  violated. 

The  court  erred  in  striking  out  the  third  answer.  Stuart 
had  a  right  to  prove  that  certain  words  changing  his  lia- 
bility were  omitted  from  the  note  by  mistake.  Hathaway 
v.  Timely,  23  Cal.  121;  Stacy  v.  Abbott,  I  Law  Times,  84. 

SHOBER  &  LOWRY,  for  respondent. 

Where  a  promissory  note  is  signed  by  two  persons  in  tht 
samr  in  a  liner,  one  of  them  cannot  set  up  a  defense  that  he 


174  GERBER  «.  STUART.  [-Aug.  T.3 

was  only  surety.     It'  a  note  is  signed  by  a  person  with  the 
words  ' k  agent  or  superintendent ' '  added,  these   words  are 
merely  a  description  of  the  person,  who  is  personally  liable. 
Story's  Ag.,  §§  loo  to  159;  Stackpole  v.  Arnold,  11  Mass 
29  ;  Benlz  v.  Stanton,  10  Wend.  271. 

No  person  is  considered  an  agent  of  another  unless  he 
stipulates  for  his  principal  by  name,  and  states  his  agency 
in  the  instrument  he  signs.  Story's  Prom.  Notes,  §§  65,  74. 

The  maker  of  a  promissory  note  is  bound  by  the  contract 

he  signs.     Aud  v.  Magrnder,  10  Gal.  289  ;  Krutzer  v.Mill, 

iS    ,  23.     No  action  could  be  maintained  on  this  note  against 

on      persons  except   Saunders   and   Stuart,  and   Stuart  is 

es:opped  from  setting  up  a  liability  in  any  other  person. 

The  note  sued  upon  is  a  joint  and  several  contract. 
There,'  is  no  ambiguity  upon  the  face  of  the  note.  The  posi- 
tion of  appellants,  if  correct,  would  permit  oral  testimony 
to  vary  the  terms  of  a  written  contract.  Hemmenway  v. 
Stone,  1  Mass.  58  ;  1  Pars,  on  Cont.  11 ;  1  Greenl.  Ev.,  §  275. 

The  third  answer  was  properly  stricken  from  the  files. 
It  was  filed  without  leave  of  court,  notice  or  meritorious 
showing.  Civ.  Prac.  Act,  §  68. 

Tli  is  appeal  was  taken  for  delay.  Respondent  claims 
damages  therefor  under  the  statute.  Civ.  Prac.  Act,  §  329  ; 
RicJcetson  v.  Compton,  23  Cal.  649 ;  NicTcerson  v.  Califor- 
nia 8.  Co.,  10  id.  520. 

SYMES,  J.  This  was  an  action  on  a  promissory  note  by 
plaintiff,  assignee,  against  the  defendants,  makers.  The 
cause  was  tried  before  the  third  judicial  district  court,  for 
Lewis  and  Clarke  county,  at  the  July  term,  1869,  and  judg- 
ment rendered  on  the  pleadings  after  the  separate  amended 
answer  of  James  Stuart  was  stricken  from  the  files,  and 
appeal  taken  from  the  judgment  roll. 

The  question  presented  is,  whether  the  new  matter  set  up 
in  the  answer  and  amended  answer,  which  was  stricken  from 
the  files,  if  proved,  would  constitute  a  legal  defense. 

The  complaint  declared  on  the  note  in  the  usual  form, 
sotting  out  a  copy  as  follows,  to  wit  : 


1870.]  GERBER  v.  STUART.  176 

"$4,300. 

"  PHILLIPPSBURG,  DEER  LODGE  COUNTY.      ) 
MONTANA  TERRITORY,  August,  31,  1868.  f 
"Thirty  days  after  date,  for  value  received,  I  promise  tc 
pay  Donald  Chrisholm  or  order,  at  Phillippsburg,  the  sum 
of  forty- three  hundred  dollars,  with  interest  at  the  rate  of 

five  per  cent  per  month  until  paid. 

"COLE  SANDERS. 

j  $2.80  U.  8.  stamp  » 
)   duly  canceled,    f 

"JAMES  STUART, 

" Gen.  Manag.  and  Supt.  St.  Lo.  da  M.  M.  Co" 
Indorsed  :  Donald  Chrisholm,  November  4,  1868. 

And  alleged  that  on  the  4th  of  November,  1868,  said 
Donald  Chrisholm  transferred  and  delivered  said  note,  duly 
indorsed,  to  plaintiff,  who  was  o  ivner  and  holder  thereof ; 
that  no  part  had  been  paid  except  the  sum  of  $784,  and 
demanded  judgment  for  $5,484  and  costs. 

The  separate  and  amended  answer  of  defendant  Stuart 
contains  a  general  denial,  and  sets  up  that  at  the  time  of  the 
execution  of  the  note  he  was  "general  manager  and  super 
intendent  of  the  St.  Louis  and  Montana  Mining  Company," 
a  corporation  created  by  the  laws  of  the  State  of  Missouri ; 
that  he  executed  said  note  in  his  said  capacity  of  "general 
manager  and  superintendent  of  the  St.  Louis  and  Montana 
Mining  Company;''  that  it  was  expressly  agreed  between 
the  said  Donald  Chrisholm  and  this  defendant,  at  the  time 
of  the  execution  of  said  note,  that  defendant  was  not  to  be 
personally  responsible  thereon  ;  that  he  executed  the  note 
simply  as  agent  for  said  mining  company  ;  that  the  intent 
and  design  of  defendant  in  signing  said  note,  as  "general 
manager  and  superintendent  of  the  St.  Louis  and  Montana 
Mining  Company,"  was  to  bind  the  said  company,  as  princ: 
pal  in  said  note,  jointly  with  said  Sanders,  but  in  no  way 
to  bind  himself ;  and  that  such  intent  and  design  was  ex- 
pressed at  the  time  of  the  execution  of  the  said  note  to  said 
Chrisholm, who  accepted  said  note,  so  signed,  with  full  knowl- 
edge of  such  intent  and  design  ;  that  the  object  of  defend- 
ant, in  signing  said  note,  was  to  cam  out  said  intention  of 


176  GrKRBEU  V.  STUART.  [^Ug.  T., 


the  parties,  and  to  bind  Ins  said  principal,  and  that  defendant, 
knowing  that  it  was  necessary  to  put  his  signature  to  said 
note,  should  indicate  that  he  signed  the  same,  in  his  capacity 
as  manager  and  superintendent  for  said  St.  Louis  and  Mon- 
tana Mining  Company,  in  order  to  bind  the  said  principal,  by 
inadvertence  and  mistake  omitted  the  word  "as"  before  the 
words  "  manager  and  superintendent  ;  "  also,  the  word  "  for  " 
after  the  word  "  superintendent,"  which  was  the  way  he  in- 
tended it  to  be.  Further,  that  if  defendant  is  not  allowed 
to  show  his  mistake  it  will  operate  as  a  fraud,  and  violate 
the  intent  and  design  of  all  parties  to  the  note  ;  that  he  had 
no  personal  interest  in  the  consideration  for  which  said  note 
was  given  ;  that  it  was  given  for  mining  property  purchased 
from  said  Chrisholm,  and  the  design  was  to  benefit  said 
mining  company  by  acquiring  an  interest  for  them  in  the 
mining  ground  jointly  with  said  Sanders;  that  defendant, 
as  manager  and  superintendent  of  said  company,  had  often 
exercised  similar  authority  for  the  benefit  of  said  company, 
which  had  been  ratified  by  them,  and  had  full  authority  to 
bind  said  company  by  said  signature  ;  and  that  plaintiff 
knew  of  the  aforesaid  agreement  between  Chrisholm  and 
defendant,  and  holds  the  note  subject  to  all  the  rights  and 
equities  of  defendant. 

Does  the  allegation  of  the  answer  set  up  a  legal  defense 
on  the  part  of  defendant  Stuart,  to  the  notes,  and,  if  so, 
will  the  law  allow  him  to  show  it,  or  will  it  conclusively 
presume  an  absolute  liability  from  the  face  of  the  note,  and 
not  allow  defendant  to  prove  any  other?  This  depends  on 
whether  the  addition  to  the  defendant  Stuart's  name  of 
"general  manager  and  superintendent  of  the  St.  Louis  and 
Montana  Mining  Company,"  shall  be  taken  conclusively  as 
descriptio  person®,  or  whether  he  will  be  allowed  to  explain 
the  addition,  and  to  show  aliunde,  that  it  was  intended 
by  the  parties  to  express  that  he  acted  as  agent,  and  that 
the  consideration  moved  to  his  principal  under  circumstan- 
ces which  releases  the  agent  from  personal  liability.  While 
there  appears,  on  examination  of  the  authorities,  especially 
the  older  ones,  that  the  addition  to  a  signature  of  ''agent,'1 


1870.J  GERBER  v.  STUART.  177 

"president,"  "superintendent,"  arid  similar  words,  have 
been  held  to  be  mere  descriptions  of  the  person,  and  not 
of  the  capacity  in  which  the  party  acted ;  the  modern  rule 
seems  to  be  that  if  from  the  whole  instrument  it  appears 
that  the  parties  intended  to  act  for  and  bind  his  principal, 
the  principal  and  not  the  agent  will  be  bound  ;  and  that 
where  the  addition  or  description  is  so  inartincially  ex- 
pressed as  to  leave  it  in  doubt,  or  ambiguous,  from  the  face 
of  the  instrument,  evidence  aliunde  will  be  admitted  to 
explain  and  show  the  actual  intention  of  the  parties.  Par- 
sons, after  citing  numerous  cases,  some  of  which  appear 
contradictory,  says,  that  the  recent  cases  and  the  best  rea- 
sons for  determining  in  each  instance,  and  with  whatever 
technical  inaccuracy  the  signature  is  made,  whether  a  party 
is  a  principal  or  an  agent,  is  from  the  facts  and  the  evidence 
to  show  the  intention  of  the  parties  to  the  contract.  1  Pars, 
on  Cont.  54,  57  ;  1  Pars,  on  Bills,  167  and  note  ;  Story  on 
Prom.  Notes,  70.  We  find  that  in  the  difficult  cases  decided 
the  instructions  of  the  court  are  the  foundation  of  the  decis- 
ions, showing  that  where  it  was  doubtful  the  cases  have 
been  submitted  to  juries.  Sayer  v.  Nichols,  7  Gal.  535  ;  5 
Cush.  158. 

In  sealed  instruments  the  name  of  the  principal  must 
appear  in  the  body  of  them  ;  but  this  is  not  required  of 
parol  contracts.  Perhaps  the  weight  of  authority  is  that 
where  a  party  signs  his  name  to  a  contract  with  only  the 
addition  of  "agent,"  "manager,"  etc.,  that  he  will  be  held 
personally  liable  if  he  does  not  disclose  the  name  of  his 
principal,  although  the  case  in  7  California  and  some  others 
lean  to  the  contrary  ;  this  case  does  not  come  within  that 
principle.  The  party  sued  on  in  this  action  does  not  sign 
his  name  merely  with  the  addition  of  "agent,  manager,  or 
superintendent,"  without  disclosing  the  name  of  any  other 
person,  but  signs  his  name  and  adds  "  Manager  and  Super- 
intendent of  the  St.  Louis  and  Montana  Mining  Company," 
disclosing  the  full  name  of  a  known  mining  corporation. 
We  are  not  called  upon  to  decide  whether  the  note  herein 
presents  a  prima  facie  case  against  defendant,  but  whether 
VOL.  1  —  23. 


178  GERBER  v.  STUART.  [Aug.  T.T 

on  its  face  it  shows  such  a  conclusive  personal  liability 
against  defendant  as  will  estop  him  from  setting  up  in  hie 
answer  and  proving  the  real  situation,  knowledge  and  inten- 
tion of  the  parties  at  the  time  of  the  execution.  Story,  in 
his  work  on  Agency,  says  that  it  is  often  difficult  to  deter- 
mine from  the  face  of  an  instrument  whether  or  not  an  agent 
is  personally  liable,  and  that  it  is  impossible  to  reconcile  all 
the  cases.  He  cites  one  case  as  follows :  "I  promise  to 
pay,"  etc.,  and  is  signed  "AB"  for  "C  D"  (the  principal), 
and  says  in  this  case  it  was  held  the  agent  was  not  per- 
sonally liable ;  and  adds  in  a  note  to  cases  cited,  that  the 
liability  in  many  cases  depends  on  the  state  of  facts  shown 
to  exist  at  the  time  the  contract  was  made,  and  sometimes 
to  whom  the  credit  was  given.  Story  on  Agency,  (Redfi eld' s 
ed.),  346,  351. 

Testing  this  case  by  these  principles,  we  think  the  court 
below  erred  in  striking  out  that  portion  of  the  amended 
answer  which  alleged  that  the  payee  in  the  note  knew  at 
the  time  of  its  execution  that  he  acted  as  agent  of  the 
mining  company  ;  that  it  was  the  intention  of  all  parties 
that  the  mining  corporation,  and  not  the  agent,  should  be 
liable  thereon  ;  that  the  payee  gave  the  credit  to  the  princi- 
pal and  not  to  defendant ;  and  that  the  contract  was  made 
for  the  benefit  and  the  consideration  moved  to  the  principal, 
said  mining  company.  And  the  note  being  transferred  to 
plaintiff  after  it  had  become  due,  this  defense  is  good  against 
him. 

If  two  persons  sign  a  note  as  principals  without  any 
thing  on  the  face  to  show  that  one  intended  to  sign  as 
surety,  still  it  may  be  shown  aliunde,  as  between  the  payees, 
that  one  intended  to  become  liable  only  collaterally  as 
surety  ;  and  if  the  word  "surety  "  is  added  to  the  signature 
it  will  be  presumed  prima  facie  from  the  face.  2  Smith's 
Lead.  Gas.  380.  Then  will  it  be  contended  that  where  a 
party  signs  a  contract  with  the  addition  of  ' '  Manager  and 
Superintendent  of  the  St.  Louis  and  Montana  Mining  Com- 
pany," that  the  law  will  not  only  prima  facie  hold  him 
liable  personally  from  the  face  of  the  contract,  but  will  con- 


1870.]  FEBES  v.  TIERNAN.  179 

clusively  presume  him  absolutely  liable  and  not  allow  him 
to  set  up  and  prove  the  real  facts  and  intention  of  the  par- 
ties at  the  time  the  contract  was  executed.  We  think  it 
would  be  in  opposition  to  the  established  principles  of  our 
modern  commercial  law. 
Judgment  reversed  and  cause  remanded. 

Exceptions  sustained. 


FEBES  et  al.,  appellants,  «.  TIERNAN  et  al.,  respondents. 

TRESPASS  PRESUMED  TO  BE  MADE  WITH  FORCE.  The  law  implies  that  an  un- 
authorized entry,  upon  the  premises  of  another,  is  made  with  force,  and 
no  evidence  of  such  force  is  required. 

PLEADING  —  trespass  —  allegation  of  force.  Actual  force  is  not  necessary  to 
constitute  a  trespass  upon  land,  and  it  is  not  necessary  to  allege,  in  actions 
in  the  nature  of  trespass,  that  the  injury  was  forcible. 

GENERAL,  VERDICT — special  findings.  A  general  verdict  should  not  be  set 
aside,  unless  the  special  finding  is  undoubtedly  inconsistent  with  it . 

Appeal  from  the  First  District,  Madison  County. 

FEBES,  and  others,  commenced  this  action  in  July,  1870, 
in  the  district  court,  to  enjoin  Tiernan  and  another  from 
injuring  their  water  ditsh,  and  recover  $2,500  damages  for 
injuring  said  ditch,  and  diverting  the  water  therefrom. 
The  jury  returned  a  general  verdict  for  $200  for  plaintiffs 
and  certain  special  findings.  The  defendants  filed  a  motion 
in  arrest  of  judgment  on  the  verdict,  because  the  jury  did 
not  find  the  defendants  guilty  of  trespass,  or  the  use  of  any 
force  in  committing  any  acts  against  the  property  of  plain- 
tiffs, and  the  special  findings  were  in  conflict  with  the  gen- 
eral verdict.  On  August  2,  1870,  the  court,  WARREN,  J., 
sustained  the  motion,  and  entered  judgment  for  defendants. 
Plaintiffs  appealed. 

WORD  &  SPRATT,  for  appellants. 

There  was  no  conflict  between  the  general  and  special 
findings  of  the  jury.  Every  material  fart  was  found  for 


180  FEBES  v.  TIERNAN.  [Aug.  T , 

the  appellants.  The  finding  that  there  was  no  force  should 
have  been  disregarded  by  the  court.  This  issue  was  not 
submitted  to  the  jury,  and  was  more  a  conclusion  of  law 
than  of  fact.  1  Chit.  PL  205  ;  1  Bouv.  L.  D.  635 ;  McDer- 
mott  v.  Higby,  23  Gal.  489. 

The  law  presumes  that  every  material  issue,  not  submit- 
ted to  the  jury  in  the  special  findings,  was  found  in  the 
general  verdict.  McDermott  v.  Higby,  23  Cal.  489. 

The  court  erred  in  assuming  to  determine  the  issues  with- 
out the  intervention  of  a  j  ury,  and  thereby  abused  its  dis- 
cretion, and  deprived  parties  of  their  right  to  a  trial  by 
jury.  The  judgment  of  the  court  is  not  consistent  with 
the  verdict  and  findings  of  the  jury. 

H.  N.  BLAKE,  for  respondents. 

This  is,  substantially,  an  action  of  trespass.  An  injunc- 
tion is  asked  for  in  aid  of  the  action.  Brennan  v.  Gaston, 
17  Cal.  373.  Special  findings  control  the  general  verdict 
when  they  are  inconsistent.  Civ.  Prac.  Act,  §  175. 

The  appellants  must  prove  that  the  respondents  committed 
the  injuries  complained  of  with  force.  2  Greenl.  Ev.,  §§ 
613,  621,  623.  The  jury  finds  that  no  force  was  used  by 
respondents.  Appellants,  having  failed  to  prove  the  gist 
of  their  action,  cannot  recover  for  injuries  resulting  there- 
from. Pico  v.  Colimas,  32  Cal.  580. 

The  respondents  have  not  committed  any  acts  that  will 
entitle  appellants  to  a  perpetual  injunction.  Civ.  Prac.  Act, 
§  112 ;  Sherman  v.  ClarJc,  4  Nev.  142,  148 ;  Verdict  and 
Findings. 

If  the  court  below  did  not  abuse  its  discretion  in  refusing 
to  grant  the  injunction,  this  court  will  not  reverse  the  judg- 
ment. Slade  v.  Sullivan,  17  Cal.  106 ;  Hicks  v.  Michael, 
16  id.  117. 

KNOWLES,  J.  This  is  an  action  for  damages  sustained 
by  appellants,  on  account  of  the  wrongful  entry  of  respond- 
ents upon  their  water  ditch,  and  the  tearing  down  of  its 
banks,  and  the  destroying  of  a  dam  attached  thereto,  and 


1870.]  FEBES  v.  TIERNAN.  181 

the  diverting  of  its  waters.     It  is  in  the  nature  of  a  com 
mon-law  action  of  trespass. 

The  jury  rendered  a  general  verdict  for  appellants.  There 
were  special  issues  presented  to  the  jury,  the  second  one  of 
which  is  as  follows : 

"Did  the  defendants,  or  either  of  them,  forcibly  injure 
the  ditch  or  dam  in  controversy,  and  divert  the  waters 
therefrom,  as  alleged  in  the  complaint,  and  if  either  one  of 
them,  which  one  of  them  ?  " 

To  this  the  jury  returned  this  answer :  "We  do  not  find 
evidence  of  forcible  injury  by  either  of  the  defendants." 

The  counsel  for  the  respondents  moved  to  set  the  general 
verdict  aside  as  inconsistent  with  this  special  finding  of  the 
jury,  and  for  judgment  for  respondents.  The  court  sus- 
tained this  motion,  and  judgment  was  entered  accordingly. 
This  ruling  of  the  court  is  assigned  as  error. 

Actual  force  is  not  necessary  to  constitute  a  trespass  upon 
land.  2  Hilliard  on  Torts,  76.  In  every  trespass  quart 
clausum  fregit  force  is  implied.  1  Chit.  PL  126.  The 
unauthorized  entry  upon  the  premises  of  another  is  a  tres- 
pass. When  such  a  state  of  facts  is  established,  the  law 
implies  that  the  entry  was  done  with  force,  and  it  is  not 
necessary  to  offer  any  further  evidence  upon  that  point. 
The  jury  found  no  evidence  of  forcible  injury,  yet,  if  they 
found  the  respondent  had  done  the  acts  complained  of,  the 
law  implied  that  they  were  done  with  force.  It  was  always 
necessary,  at  common-law  actions,  to  be  particular  in  deter- 
mining whether  the  injury  was  the  immediate  and  direct 
result  of  the  wrongful  act  complained  of,  or  whether  it 
resulted  because  or  by  reason  of  this  act,  for  this  distinction 
determined  whether  the  action  should  be  trespass  or  action 
on  the  case.  One  class  of  injuries  was  said  to  be  forcible, 
and  the  other  consequential.  At  common  law  the  issue 
whether  the  injury  was  forcible  or  not  was  not  a  matter  of 
substance,  but  only  entertained  to  determine  whether  the 
action  should  be  trespass  or  case.  The  allegation  that  an 
injury  was  done  m  et  armis  has  been,  tor  a  long  time, 


182  FEBES  v.  TIERNAN.  [Aug.  T. 

treated  only  as  a  formal  allegation,  and  the  absence  of  it 
only  a  ground  for  special  demurrer.    1  Chit.  PL  663,  664. 

A  pleading,  in  which  it  was  omitted,  was  aided  by  ver- 
dict. Chit.  PL  126,  note  t.  Under  our  code  system  of 
practice,  it  is  not  necessary  to  allege  that  the  injury  was 
forcible.  Van  Santv.  PL  290.  Hence,  it  is  not  necessary  to 
prove  it. 

A  general  verdict  should  not  be  set  aside  unless  the 
special  finding  clearly  controverts  it,  and  is  undoubtedly 
inconsistent  with  it.  In  this  case  the  answer  of  the  jury  is 
what  might  be  termed  a  negative  pregnant.  It  does  not 
say  that  the  defendants,  or  either  of  them,  did  not  do  the 
acts  complained  of,  but  only  that  they  do  not  find  any  evi- 
dence that  they  did  them  with  force.  Admitting  that  it  was 
necessary  that  they  should  be  done  with  force,  no  evidence 
was  required  to  prove  it.  The  law  would  imply  it. 

It  may  be  proper  to  remark  that  there  are  reasons  for 
supposing  that  the  jury  were  misled  by  this  issue  presented 
them.  If  it  had  been  told  them  that  if  the  defendants  cut 
the  dam  and  tore  down  the  banks  of  appellants'  ditch 
without  authority,  the  law  implied  that  the  acts  were  done 
forcibly,  I  apprehend  there  would  have  been  no  difficulty. 
It  can  hardly  be  supposed  that  a  jury  were  so  stupid  as  to 
find  that  the  respondents  did  not  commit  the  acts  complained 
of,  and  yet  find  a  general  verdict  against  them.  The  only 
solution  of  this  difficulty,  I  think,  is,  that  the  jury  did  find 
that  respondents  did  commit  the  acts  complained  of,  which 
the  law  would  have  implied  were  done  forcibly,  but  that  the}* 
did  not  find  them  accompanied  manu  forli,  that  is,  with 
such  force  as  in  forcible  entry  and  unlawful  detainer. 

For  these  reasons  I  think  the  judgment  of  the  court 
below  should  be  reversed,  and  a  judgment  entered  for 
appellants,  in  accordance  with  the  general  verdict. 

Exceptions  sustained. 


1870.]  WILSON  v.  DAVIS.  l«i 


WILSON,  respondent,  «.  DAVIS  et  al.,  appellants. 

PRACTICE  — findings  of  referee  —  not  reviewed  without  testimony.  This  court  will 
uot  review  the  findings  of  a  referee,  if  the  testimony  on  which  they  are 
based  is  not  made  a  part  of  the  transcript. 

PARTNERSHIP  —  partner  has  lien  on  joint  property.  A  partner,  who  contributes 
on  account  of  the  partnership  business  any  sum  in  excess  of  his  proportion 
over  his  copartner,  has  a  lien  upon  the  joint  property  for  the  sum  so  con- 
tributed. 

INTEREST  —  compound  interest — not  allowed  in  equity.  Courts  of  equity  will 
not  allow  compound  interest,  if  the  contract  therefor  and  the  original  con- 
tract were  made  at  the  same  time  and  before  any  interest  was  due,  and  a 
written  agreement  to  pay  such  interest  shall  not  be  enforced. 

INTEREST  —  compound  interest,  at  common  law.  The  old  common-law  rule,  which 
did  not  allow  compound  interest,  has  not  been  overruled  in  the  United 
States. 

INTEREST  —  territorial  statute,  regulates  simple  interest.  The  statute  of  this  Terri- 
tory, which  establishes  the  rates  of  interest,  relates  to  simple  interest,  and 
does  not  authorize  contracts  for  compound  interest. 

INTEREST  —  a  contract  for  payment  of  compound  interest  not  enforced.  A  party 
who  agrees  to  sell  real  and  personal  property  upon  the  payment  of  a  note, 
which  stipulates  that  the  interest  shall  be  compounded  monthly,  if  it  is  not 
paid,  is  required  to  convey  the  property  on  the  payment  of  the  principal  of 
the  note,  and  simple  interest  upon  the  same. 

PARTNERSHIP  —  rights  of  partners  after  dissolution  —  sale  of  property.  The 
member  of  a  partnership,  who  dissolves  it  by  refusing  to  continue  its  busi- 
ness, cannot  compel  his  partner  to  carry  out  one  article  of  the  copartner- 
ship, which  stipulates  that  the  excess  of  funds  which  either  contributes, 
shall  be  paid  out  of  the  net  earnings  of  the  partnership  property;  and  a 
court  of  equity  can  order  the  property  to  be  sold  to  pay  such  excess. 

PlJSADiNa —  attorney's  fees  not  recoverable  under  general  prayer.  A  reasonable 
attorney's  fee  will  not  be  awarded  to  a  party  under  a  general  prayer  for  a 
certain  sum  as  damages  and  expenses  in  protecting  "rights,  remedies  and 
equities."  It  should  be  specifically  demanded. 

PRACTICE — jurisdiction  —  this  court  examines  nothing  except,  decree  of  court 
below.  This  court  can  only  determine  whether  or  not  the  decree  of  the 
court  below  should  be  affirmed,  and  cannot  now  consider  the  effect  of  the 
undertaking  on  appeal  upon  the  order  of  the  court  below,  for  the  sale  of 
property. 

Appeal  from  the  Third  District,  Lewis  and  ClarJct 
County. 

THIS  case  was  before  this  court  at  the  December  term, 
1868,  and  is  reported,  ante,  p.  98. 

On  Xovember  4,  1868,  Wilson  filed  an  amended  and  sup 
plemental  complaint  against  Davis,  W.  L.  Perkins  and  W. 


184  WILSON  v.  DAVIS.  [Aug.  T. 

A.  Fredericks,  which  contained  the  following  material  alle- 
gations :  That  Davis  and  Fredericks,  on  January  30,  1867, 
owned  the  property  in  Gallatin  county,  Montana,  known  as 
the  Madison  mills  ;  that  Davis  sold  and  delivered  his  inter- 
est therein,  for  two  certain  contracts,  which  were  as 
follows : 

"GALLATIN  CITY,  January  30, 1867. 
"Twelve  months  from  date,  for  value  received,  I  promise 
to  pay  A.  J.  Davis,  or  order,  five  hundred  and  thirty-three 
and  one-half  ounces  of  bankable  gold  dust,  or  its  value  in 
treasury  notes  of  the  United  States,  together  with  five  per 
cent  interest  from  the  first  day  of  January,  1867,  per  month, 
said  interest  to  be  paid  monthly,  and  if  not  paid  at  the  end 
of  each  month,  to  bear  interest  the  same  as  the  principal. 
It  is  agreed  that  should  ninety  days'  interest  accumulate 
without  being  paid,  then  this  note  falls  due. 

"W.  A.  FREDERICKS." 

I$4.50  stamp.] 

"GALLATIN  CITY,  January  30,  1867. 
"For  value  received,  I  promise  to  pay  A.  J.  Davis,  or 
order,  seven  hundred  and  thirty-nine  sacks  of  100  pounds 
each  of  No.  1,  thribble  X  flour,  manufactured  at  the  Madi- 
son mills,  in  this  place,  payable  as  fast  as  the  mill  can  make 
the  same,  the  payment  to  be  completed  on  or  before  the 
first  day  of  June  next,  and  if  not  paid  at  maturity,  I  agree 
to  pay  any  damages  that  said  Davis  may  sustain  thereby. 

"  W.  A.  FREDERICKS." 

L$3  J26  stamp.] 

The  complaint  further  alleged  that  Davis  was  to  make  a 
good  deed  of  one-half  of  the  property  to  Fredericks,  as 
soon  as  said  contracts  were  executed ;  that  Fredericks, 
afterward,  executed  to  said  Perkins  a  deed  of  trust  of  the 
entire  property,  to  secure  the  payment  to  Davis  of  said  gold 
dust  and  flour ;  that  Fredericks,  on  February  1,  1867,  sold 
to  Wilson  one-half  of  said  property  for  $9,000,  and  the 
payment  of  one-half  of  the  interest  payable  to  Davis  on 
said  gold  dust  contract ;  that  Wilson  had  had  possession  of 
the  property  from  that  date,  until  the  appointment  of  a 


1370.  J  WILSON  v.  DAVIS.  185 

receiver  in  this  action ;  that  Fredericks  then  agreed  that 
Wilson  should  have  the  net  earnings  of  the  mill,  until  he 
was  repaid  all  amounts  advanced  by  him  over  what  Fred- 
ericks advanced ;  that  Wilson  so  advanced  $3,000  more 
than  Fredericks  to  run  the  mill,  and  $8,000  in  gold  dust, 
flour  and  money  for  Fredericks  to  Davis,  besides  said  $9,000, 
for  all  of  which  he  was  entitled  to  a  lien  on  Fredericks'  half 
of  the  property ;  that  Davis  had  received  on  said  contracts 
$2o,000,  which  fully  satisfied  them  ;  that  Davis  knew  that 
Wilson  had  an  interest  in  the  property,  and  refused  to 
receive  from  Wilson,  on  May  20,  1867,  the  sum  due  from 
Fredericks  to  Davis,  which  Wilson  then  tendered ;  that 
Davis  and  Fredericks  conspired  together  to  prevent  Wilson 
from  obtaining  a  deed  to  his  half  of  the  property ;  that 
Wilson  was  ready  to  pay  any  sum  that  was  due  from  Fred- 
ericks to  Davis  ;  that  Davis  had  revoked  a  power  of  attor- 
ney to  Perkins,  to  execute  a  deed  to  Fredericks,  and  that 
Fredericks  had  executed  to  Davis  a  deed  of  his  interest  in 
the  property  ;  and  that  Davis  had  a  deed  to  the  property 
from  the  sheriff  of  Gallatin  county,  and  that  said  deeds 
were  fraudulent. 

The  complaint  prayed  for  an  accounting  between  Wilson 
and  Davis,  and  that  Davis  and  Fredericks  be  compelled  to 
execute  a  deed  of  one-half  of  the  property  to  Wilson  ;  that 
an  accounting  be  had  between  Wilson  and  Fredericks,  and 
that  Wilson  have  a  lien  on  Fredericks'  half  of  the  property 
for  the  amount  found  due  to  him  ;  that  the  trust  deed  to 
Perkins,  the  deed  from  Fredericks  to  Davis,  and  the  sheriff's 
deed  to  Davis,  be  adjudged  null  and  void  ;  and  that  Wilson 
have  quiet  possession  of  his  half  of  the  property. 

On  March  8,  1869,  Davis  and  Perkins  tiled  their  answer 
to  this  complaint,  and  admitted  the  following  facts :  That 
on  January  30,  1867,  Davis  and  Fredericks  owned  the  prop- 
erty, and  that  Fredericks  made  the  two  contracts  for  flour 
and  gold  dust ;  that  Fredericks  made  the  trust  deed  to 
Perkins  ;  that  Davis  agreed  to  make  a  deed  of  his  half  of 
the  property  when  the  flour  and  gold  dust  were  delivered  : 
that  Davis  also  agreed  that  Fredericks,  on  giving  thirty 
VOL.  1  —  24 


186  WILSON  v.  DAVIS.  [Aug.  T. 

days'  notice,  could  satisfy  the  contracts  before  maturity  ; 
and  that  Davis  had  executed  to  Perkins  a  power  of  attor- 
ney to  make  a  deed  of  the  property  to  Fredericks,  on  pay- 
ment of  the  contracts. 

The  answer  denied  that  Davis  ever  sold  or  delivered  the 
property  to  Fredericks  ;  that  the  contracts  for  flour  and 
gold  dust  had  ever  been  satisfied ;  that  Wilson  became  the 
joint  owner  of  the  property  with  Fredericks ;  that  the 
agreement  of  Wilson  and  Fredericks  affected  the  interests 
of  Davis  in  the  property ;  that  Wilson  ever  tendered  the 
sum  due  from  Fredericks  to  Davis  ;  that  Davis  and  Fred- 
ericks ever  conspired  together  to  wrong  Wilson  ;  and  that 
Wilson  and  Fredericks  ever  had  possession  of  the  property. 

The  answer  alleged  that  Perkins  entered  into  the  posses- 
sion of  the  property  under  the  trust  deed  from  Davis  ;  that 
on  December  3,  1867,  Davis  recovered  a  judgment  against 
Fredericks,  upon  his  confession  in  writing,  on  the  flour  con- 
tract, for  $7,368,  and  also  a  judgment  on  the  gold  dust  con- 
tract for  $16,502  ;  that  executions  were  issued  on  said  judg- 
ments, under  which  the  sheriff  of  Gallatin  county  sold  the 
property,  and  delivered  to  Davis  a  deed  thereof,  on  July  1. 
1868;  that  Wilson  had  full  knowledge  of  the  rights  of 
Davis  before  he  contracted  with  Fredericks  for  an  interest 
in  the  property ;  that  Fredericks  owed  Davis  $17,382, 
besides  $6,500  damages  ;  and  that  Wilson  had  wrongful 
possession  of  the  property,  and  had  appropriated  the  pro- 
ceeds, $14,700,  and  personal  property  valued  at  $5,000. 

The  answer  prayed  that  the  property  be  restored  to  de- 
fendants. 

On  April  15,  1869,  Fredericks  filed  his  separate  answer, 
which  was  substantially  the  same  as  that  of  Davis  and  Per- 
kins, and  alleged  that  Wilson  agreed  to  pay  him  for  one- 
half  of  the  property  $9,000,  and  one-half  of  the  debt,  as 
well  as  interest,  due  from  Fredericks  to  Davis  ;  and  that, 
by  mistake,  the  agreement  relating  to  the  payment  of  one- 
half  of  said  debt  was  omitted  in  the  writings. 

On  March  25, 1869,  the  court,  by  agreement  of  the  parties 
appointed  Cornelius  Hedges,  Esq.,  a  referee,  to  make  an 


1870.]  WILSON  a.  DAVIS.  187 

accounting  between  Wilson  and  Fredericks.  On  June  29. 
1869,  the  court,  by  agreement  of  the  parties,  appointed 
Henry  N.  Blake  a  referee,  to  report  the  amount  and  value 
of  the  flour  received  by  Davis  from  Fredericks  or  Wilson, 
or  both,  on  the  flour  contract ;  and  the  sum  that  would  be 
a  reasonable  attorney's  fee  in  this  cause,  for  foreclosing  and 
collecting  the  sum  due  on  the  trust  deed  of  Davis. 

On  March  26,  1869,  the  parties  agreed,  in  open  court,  that 
all  questions  of  fact  should  be  decided  by  the  court. 

On  April  27,  1869,  Hedges,  referee,  reported  that  Wilson 
had  paid  Fredericks  $9, 000  as  purchase-money  for  one-half 
of  the  Madison  mills  ;  and  that  Fredericks  owed  Wilson 
$14,858.16,  for  the  payment  of  which  Wilson  was  entitled 
to  receive  the  net  earnings  of  the  property.  The  court, 
WARREN,  J.,  confirmed  this  report. 

On  July  5,  1869,  Blake,  referee,  reported  that  Davis  had 
received  on  the  flour  contract,  over  the  amount  credited 
thereon  (125  sacks),  650  sacks  of  XXX  flour,  worth  $6,460  ; 
and  that  a  reasonable  attorney's  fee  for  collecting  the 
amount  due  Davis  on  the  trust  deed  was  $1,500.  The 
court,  WARREN,  J.,  confirmed  this  report. 

On  July  29,  1869,  the  court,  WARREN,  J.,  rendered  judg- 
ment, and  signed  a  decree  in  favor  of  Wilson,  and  defend- 
ants appealed. 

The  opinion  contains  the  other  facts. 

WOOLFOLK  &  TOOLE,  for  appellants. 

The  court  failed  to  find  on  material  issues  in  the  plead- 
ings. Wilson  asks  no  relief  from  the  contract  he  has  set 
out,  but  demands  a  specific  performance  from  Davis.  The 
alleged  tender  by  Wilson  to  Davis  was  not  made  after  giving 
thirty  days'  notice,  according  to  the  agreement  between 
Davis  and  Fredericks,  and  was  void. 

The  court  does  not  find  that  there  was  collusion  between 
Davis  and  Fredericks  to  defraud  Wilson.  A  fraudulent  set- 
tlement between  Davis  and  Fredericks  as  to  Wilson  is  not 
sufficient  proof  of  fraud.  The  settlement  must  have  been 
with  intent  to  defraud  Wilson. 


188  WILSON  t>.  DAVIS.  [Aug.  T. 

Material  allegations  of  the  complaint,  which  are  denied 
by  the  answer  and  not  found  by  the  court,  are  equivalent 
to  a  finding  for  the  defendant.  Wilson  cannot  be  subro- 
gated  to  the  rights  and  equities  of  Davis.  Davis  cannot  be 
compelled  to  give  up  a  good  contract  to  one  who  acquires 
an  interest  in  the  property  with  a  full  knowledge  of  all  the 
facts.  Davis  can  let  his  demand  run  until  barred  by  the 
statute  of  limitations. 

Davis  does  not  seek  to  foreclose,  and  asks  no  affirmative 
relief.  There  could  be  no  accounting  between  Wilson  and 
Davis  on  account  of  contracts  between  Davis  and  Freder- 
icks, in  which,  there  was  no  privity  between  Wilson  and 
Davis. 

The  decree  of  the  court  relieves  Wilson  in  the  absence 
of  any  prayer  for  relief,  and  in  the  face  of  his  prayer  for  a 
specific  performance  of  the  contract,  and  against  the  plain 
terms  of  the  contract. 

The  advances  made  by  Wilson  to  Davis  and  otherwise, 
by  express  agreement,  were  to  become  a  lien  on  the  prop- 
erty, and  were  not  payable  until  they  were  made  from  the 
earnings  of  the  mill.  Wilson  could  acquire  no  rights  in 
the  property  that  were  not  subject  to  those  of  Davis. 

The  court  erred  in  not  allowing  Davis  interest  upon  interest, 
according  to  the  contract,  which  Wilson  brings  this  suit  to 
compel  Davis  to  perform.  This  amounts  to  $6,424.  Wil- 
son cannot  pray  for  relief  from  one  part  of  an  agreement 
and  demand  a  specific  performance  of  the  other  part.  The 
court  cannot  compel  a  party  to  sell  property  for  a  consid- 
eration against  his  will.  A  third  party  can  make  no  such 
plea  after  purchasing  with  a  knowledge  of  the  contract. 
Specific  performance  on  one  side  requires  it  on  the  other. 

Wilson  must  receive  what  Fredericks  owes  him  from  the 
net  earnings  of  the  mill  and  in  no  other  way.  He  made 
this  contract  and  must  stand  upon  it.  There  is  no  finding 
that  the  net  earnings  of  the  property  would  not  liquidate 
Wilson's  demand. 

The  court  erred  in  ordering  a  sale  of  the  property  and 
the  payment  of  the  proceeds  to  Wilson.  This  works  an 


1870.]  WILSON  t>.  DAVIS.  189 

Injustice  to  Fredericks,  who  loses  his  property,  the  net  earn 
ings  of  which  should  pay  his  debt  to  Wilson.  It  is  an 
unauthorized  violation  of  the  spirit  and  terms  of  the  con- 
tract. Wilson  could  not  have  the  interest  of  Fredericks  sold 
to  satisfy  a  partnership  debt  in  this  way,  for  each  partner 
has  an  interest  in  the  proceeds.  Civil  Prac.  Act,  §  264,  etseq. 

The  appeal  in  this  case  stayed  the  sale  of  the  property. 
It  was  in  the  custody  of  the  law.  Wilson,  purchasing  with 
full  knowledge  of  the  facts,  cannot  obtain  relief  from  a  con- 
tract as  usurious,  as  he  does  not  plead  the  same.  Ohio  & 
M.  R.  R.  Co.  v.  Kasson,  37  N.  Y.  218  ;  Connecticut  v.  Jack- 
son, I  Johns.  Ch.  14 ;  Kellogg  v.  Hickock,  1  Wend.  521  ; 
Sands  v.  Church,  2  Seld.  347 ;  De  Wolf  v.  Johnson,  10 
Wheat.  392  ;  Merrills  v.  Low,  9  Cow.  65  ;  Beach  v.  Fulton 
Bank,  3  Wend.  573 ;  Green  v.  Comlland,  10  Cal.  317. 

The  court  should  have  allowed  Davis  an  attorney's  fee. 
The  referee  reported  the  amount. 

Respondent  cannot  show  a  case  where  the  plaintiff,  in  an 
action  to  compel  the  specific  performance  of  a  contract  to 
convey  real  estate,  is  relieved  for  any  cause  from  part  of  the 
purchase-money  and  yet  obtained  a  decree  of  title.  Courts 
of  equity  do  not  make  a  contract  for  parties  and  enforce  it 
against  their  will. 

No  insolvency  is  charged  against  Fredericks,  and  there  is 
no  necessity  for  interfering  between  Davis  and  Fredericks. 
It  is  not  charged  that  Wilson  is  not  amply  secured,  and  the 
contracts  cannot  be  carried  out  according  to  the  intention 
of  the  parties. 

W.  P.  SANDKBS,  WORD  &  SPBATT  and  GK  MAY,  for  re- 
spondent. 
No  brief  on  file. 

KNOWLES,  J.  Although  exceptions  were  taken  to  the 
findings  of  the  reports  of  the  referees  in  this  case,  the  tes- 
timony upon  which  they  based  their  findings  is  not  made  a 
part  of  the  record  in  this  court.  Hence  we  cannot  review 
them  ;  and  they  must  stand  as  true.  No  exceptions  appear 


190  WILSON  v.  DAVIS.  [Aug.  T. 

in  the  record  to  the  findings  of  fact  by  the  court  below, 
These  also  then  must  stand  as  true.  There  are  no  specifica 
tions  in  the  record  of  errors  committed  in  rendering  the 
decree  by  the  court  below.  This,  however,  was  not  objected 
to  by  counsel  for  respondent ;  and  waiving  this  objection 
the  only  points  we  can  consider  are  those  which  appellants 
have  presented  in  their  brief,  and  which  appear  on  the  face 
of  the  records. 

It  appears  from  the  findings  of  the  court  below,  and  the 
referees  in  this  cause,  that  Davis  contracted  to  sell  Freder- 
icks an  undivided  one-half  of  the  Madison  mills,  together 
with  the  land  upon  which  the  same  was  situated,  and  all  the 
appurtenances  thereto  attached,  together  with  some  per- 
sonal property.  That  to  secure  the  contract  price  for  said 
property  Fredericks  executed  and  delivered  to  Davis  his  two 
promissory  notes,  one  for  flour  and  the  other  for  gold  dust, 
and  to  secure  the  payment  of  these  executed  and  delivered 
to  Perkins  his  deed  of  trust  for  the  benefit  of  Davis  on  the 
said  mill  property. 

Subsequent  to  this  Fredericks  contracted  to  sell,  and  did 
sell  to  Wilson  an  undivided  one -half  of  said  property  ;  and 
in  pursuance  with  said  contract  Wilson  and  Fredericks  en- 
tered into  the  joint  possession  of  said  property. 

Fredericks  after  this  sale  to  Wilson  confessed  two  judg- 
ments on  the  aforesaid  promissory  notes,  in  Meagher  county, 
in  favor  of  Davis.  The  court  below  set  these  two  judgments 
aside  as  a  fraud  upon  the  rights  of  Wilson. 

All  title  that  Davis  may  have  acquired  to  said  property 
by  virtue  of  a  sale  thereof  under  these  judgments  failed  in 
consequence  of  the  annulling  the  said  judgments.  The 
deed  from  Fredericks  and  wife  to  Davis  the  court  also 
declared  fraudulent  and  void.  Appellants  make  no  point 
upon  these  rulings  in  their  brief.  And  if  they  did,  there 
cannot  be  any  doubt  from  the  report  of  the  referee,  Blake, 
that  sufficient  does  appear  to  have  fully  warranted  the  court 
in  so  setting  the  smaller  of  said  judgments  aside  for  that 
cause,  and  that  defendant,  Davis,  was  not  in  the  least  dam- 
aged by  the  setting  aside  of  the  other,  as  this  court  has  held 


1870.]  WILSON  v.  DAVIS.  191 

that  judgments  bear  only  ten  per  cent  interest ;  and  as  any 
rights  Davis  acquired  to  said  property  by  a  sale  thereunder 
was  in  subordination  to  Wilson's  rights.  Davis  knew  of 
Fredericks'  sale  to  Wilson ;  and  hence  as  to  his  rights,  the 
sale  by  Fredericks  to  him  (Davis)  was  a  fraud.  It  was  an 
attempt  by  Fredericks  to  convey  what  he  had  parted  with. 
All  that  is  left  for  this  court  to  consider  then,  is  the  rights  of 
the  several  parties  to  this  action  under  the  contract  of  sale 
from  Davis  to  Fredericks,  the  deed  of  trust  to  Perkins,  and 
the  contract  of  sale  by  Fredericks  to  Wilson.  Considerable 
is  said  in  the  brief  of  appellants  in  regard  to  the  right  of 
Wilson  to  be  subrogated  to  the  rights  of  Davis. 

The  decree  entered  by  the  court  below  does  not  purport 
to  do  this.  It  allows  Wilson  to  pay  off  the  incumbrance 
against  the  joint  property  of  Fredericks  and  Wilson.  This 
is  no  novel  right,  but  one  which  the  law  clearly  guarantees. 
It  also  decrees  that  the  amount  paid  by  Wilson  in  ex- 
cess of  that  paid  by  Fredericks  shall  be  a  lien  upon  their 
joint  property.  It  would  appear  from  the  contract  between 
Fredericks  and  Wilson,  which  is  a  part  of  this  record,  that 
these  parties  had  been  clearly  partners,  and  that  this  property 
was  partnership  property.  The  law  gives  to  each  partner  a 
lien  upon  the  joint  effects  of  the  partnership  for  any  excess 
over  his  partner  which  he  has  contributed  to  their  joint  busi- 
ness, and  to  preserve  their  joint  property.  It  decreed  that 
upon  the  payment  to  Davis  of  the  amount  for  which  he  con- 
tracted to  sell  said  property  to  Fredericks,  together  witli  five 
per  cent  interest  per  month  thereon,  without  any  interest 
upon  interest,  Davis  should  make  a  conveyance  to  Freder- 
icks. Wilson  having  by  law  a  lien  upon  whatever  interest 
Fredericks  had  in  said  property,  could  properly  demand 
of  Davis  a  conveyance  to  Fredericks  of  an  undivided  one- 
half  of  said  property,  upon  his  receiving  what  lie  was  legally 
entitled  to  under  the  contract  to  sell  the  same. 

This  brings  us  to  the  consideration  of  the  question  of  how 
much  Davis  was  entitled  to  receive  of  Fredericks,  or  his 
grantee,  before  he  could  be  compelled  to  make  a  deed  to 
said  property.  The  note  given  by  Fredericks,  payable  in 


192  WILSON  v.  DAVIS.  [Aug.  T., 

gold  dust  or  its  equivalent  in  United  States  treasury  notes, 
to  secure  the  payment  of  part  of  the  purchase-money  for 
said  property,  stipulated  that  the  principal  should  bear  live 
per  cent  interest  per  month,  payable  monthly  ;  and  that,  if 
this  interest  should  not  be  paid  when  it  fell  due,  then  this 
interest  should  bear  the  same  rate  of  interest  as  the  princi- 
pal. The  court  below  refused  to  allow  this  interest  upon 
interest.  This  is  assigned  as  error  in  appellant' s  brief. 

It  seems  to  be  a  well-settled  principle,  in  courts  of  equity, 
not  to  allow  interest  upon  interest  where  the  contract  to  pay 
the  same  was  made  at  the  time  of  the  original  contract,  and 
before  any  interest  had  become  due,  where  the  payee  seeks 
to  enforce  such  a  contract,  although  a  stipulation  to  that 
effect  would  not  vitiate  the  original  contract.  SellecJc  v. 
French,  Am.  Lead.  Cases,  534. 

If  Davis,  then,  would  not  be  entitled  to  demand  of  Fred- 
ericks interest  upon  interest,  if  he  sought  to  collect  the 
same  and  to  enforce  his  lien  upon  said  property,  there  is 
no  reason  for  requiring  Fredericks  or  Wilson  to  pay  hhr 
more  than  he  could  recover,  before  they  could  demand  of 
Davis  a  cancellation  of  the  deed  of  trust  at  least. 

It  is  claimed,  however,  that  it  would  be  inequitable  to 
compel  Davis  to  convey  his  property  for  less  than  he  had 
agreed  to.  That  a  court  of  equity  might  think  it  inequita- 
ble to  compel  Fredericks  to  pay  compound  interest,  if 
Davis  sought  to  collect  the  same,  and,  upon  application, 
might  relieve  Fredericks  of  this  contract  as  oppressive  and 
unconscionable,  but  that  they  cannot  say  to  Fredericks  you 
need  not  pay  what  you  agreed  to,  and,  to  Davis,  you  must 
convey  your  property  for  less  than  you  agreed. 

In  law,  what  did  Fredericks  agree  to  pay  Davis  for  this 
property,  and  what  did  Davis  agree  to  convey  it  for  ? 

Interest  upon  interest  was  not  allowed  at  common  law, 
although  awarded  by  a  special  contract  to  that  effect. 
Pars,  on  Bills  &  Notes,  vol.  2,  p.  391 ;  Rensselaer  Glass 
Factory  v.  Reid  et  al.,  5  Cow.  609. 

It  was  considered  a  violation  of  the  laws  of  God,  and 
contrary  to  good  conscience ;  although  an  English  statute 


1870.]  WILSON  v.  DAVIS.  193 

was  enacted,  prohibiting  all  interest  above  a  certain  amount. 
This  left  it  to  parties  to  agree  to  any  interest  less  than  that 
amount. 

It  was  thought  better,  perhaps,  that  a  small  interest 
should  be  collected  legally,  than  that  a  large  interest  should 
be  collected  illegally  and  by  evasive  means.  This  statute, 
however,  was  never  construed  by  the  English  courts  as 
allowing  compound  interest  in  any  amount.  The  current 
of  English  authorities  are  adverse  to  allowing  compound 
interest.  The  only  modification  which  this  English  statute 
of  Henry  the  VIII,  before  referred  to,  made  then  in  the 
common  law,  was  to  allow  simple  interest,  when  agreed  to 
bj  the  parties,  for  any  amount,  not  to  exceed  ten  per  centum 
per  annum.  Thus  stood  the  common  law,  I  think,  when 
this  government  became  independent.  The  legislative 
assembly  of  this  Territory  have  enacted,  "That  the  com- 
mon law  of  England,  so  far  as  the  same  is  applicable  and 
of  a  general  nature,  and  not  in  conflict  with  special  enact- 
ments of  this  Territory,  shall  be  the  law  and  the  rule  of 
decision,  and  shall  be  considered  as  of  full  force,  until 
repealed  by  legislative  authority."  See  Laws  of  Montana 
Territory  for  1861,  p.  356. 

This  rule  of  the  common  law  is  certainly  applicable,  and 
of  a  general  nature.  If  we  turn  to  the  American  rule,  in 
relation  to  this  question,  I  think  we  must  arrive  at  the  same 
conclusion.  In  this  country  the  right  to  collect  interest  has 
been  made  legal  by  usage  and  the  decisions  of  the  courts. 
Pars,  on  Bills  &  Notes,  vol.  2,  p.  392.  And  I  may  add, 
in  some  States  by  statute.  Only  such  interest  should  be 
allowed,  then,  as  is  warranted  by  usage  and  legal  adjudi- 
cations, or  by  statute.  I  think  I  am  safe  in  saying,  that  no 
universal  custom  exists  throughout  the  United  States  to 
allow  compound  interest.  Many  of  the  States  have  enacted 
special  statutes,  prohibiting  it.  Hare  and  Wallace,  in  their 
notes  to  the  case  of  Selleck  v.  French,  Am.  Lead  Cases, 
r>33,  say,  that  the  better  opinion  is,  that  at  law  compound 
interest  should  be  allowed. 

Parsons  on  Bills  &  Notes,  vol.  2,  p.  424,  says,  that,  in  the 
VOL.  1  —  25. 


194  WILSON  0.  DAVIS.  [Aug.  T., 

present  state  of  the  authorities,  it  can  hardly  be  supposed 
that  a  bargain  for  compound  interest  would  be  enforced. 

In  the  case  of  Cox  v.  Smith  et  aL,  1  Nev.  169,  the  court 
says  that  it  could  find  but  two  cases  where  courts  of  law 
had  allowed  compound  interest,  and  one  of  these  was  after- 
ward overruled.  That  in  New  York  and  Massachusetts  the 
current  of  authorities  are  all  against  it. 

It  will  be  seen  by  these  authorities  that  there  is  a  conflict 
of  opinion  upon  this  subject  in  the  United  States.  Which- 
ever way  the  preponderance  of  authority  may  be,  the 
means  afforded  me  for  the  investigation  of  the  subject  will 
not  warrant  me  in  saying.  I  am  sure,  however,  that  the 
current  of  American  authorities  have  not  been  so  general 
as  to  warrant  any  one  in  saying  that  the  old  common-law 
rule  has  been  set  aside,  and  an  American  common  law  es- 
tablished upon  this  subject.  It  is  conceded,  everywhere, 
that  the  rule  in  equity  courts  is  adverse  to  the  allowing  of 
such  interest. 

This  is  an  action  in  equity.  Whatever  may  have  been 
the  reasons  that  induced  equity  courts  to  refuse  to  allow 
compound  interest,  they  have  declared  that  such  interest  is 
illegal ;  or,  in  other  words,  courts  of  equity  have  held  fast 
to  the  common-law  rule  upon  this  subject,  and  in  nowise 
have  changed  it ;  and  we  must  hold  that  such  is  the  law, 
unless  it  has  been  changed  by  the  statutes  of  this  Territory. 

The  third  section  of  the  act  upon  interest,  in  this  Terri- 
tory, reads  as  follows:  "The  parties  to  any  bond,  bill, 
promissory  note  or  other  instrument  of  writing,  may  stipu  - 
late  therein  for  a  greater  or  higher  rate  of  interest  than  ten  per 
cent  per  annum,  and  any  such  stipulation  contained  in  any 
such  instrument  of  writing  may  be  enforced  in  any  court 
of  law  or  equity  of  competent  jurisdiction  in  this  Territory/' 

This  evidently  contemplates  simple  interest.  If  the  stat- 
ute had  said,  parties  to  written  instruments  should  not  stipu- 
late for  any  higher  or  greater  rate  of  interest  than  ten  p<->r 
cent  per  annum,  the  same  question  as  to  compound  interest 
would  be  left  open.  Compound  interest  is  interest  upon 
interest.  The  rate  of  interest  which  the  law  mav  allow 


1870.]  WILSON  v.  DAVIS.  196 

does  not  affect  this  question.  In  the  case  of  Thu  Rensselaer 
Glass  Factory  v.  Reid,  5  Cow.  609,  Senator  Spencer  says  : 
"That  in  New  York  the  statute  on  interest  is  negative,  pro- 
hibitory of  interest  being  taken  above  a  certain  rate."  It 
does  not,  in  terms,  prohibit  compound  interest ;  yet,  both 
the  courts  of  law  and  equity  have  held,  in  that  State,  that, 
though  this  statute  authorized  parties  to  agree  to  any  rate 
less  than  that  prohibited,  it  did  not  authorize  agreements  on 
compound  interest. 

The  case  of  Cox  v.  Smith  et  al.y  1  Nev.  169,  holds  that  a 
statute  of  Nevada,  similar  to  this  one,  does  not  warrant 
compound  interest. 

And,  as  before  remarked,  the  statutes  of  England  are  only 
prohibitory  of  certain  interest  above  a  certain  rate,  and  left 
it  to  parties  to  agree  to  a  less  rate  of  interest,  and,  in  terms, 
did  not  prohibit  compound  interest;  yet,  the  current  of 
English  authorities  is  adverse  to  allowing  any  thing  but  sim- 
ple interest,  when,  as  in  this  case,  the  contract  was  made  at 
the  time  of  the  original  contract.  The  term,  rate  per  cent, 
whether  used  at  common  law  or  in  statutes,  so  far  as  I  have 
been  able  to  learn,  signifies  so  much  per  cent  on  the  princi- 
pal. That  term,  used  in  this  statute,  must  be  so  construed. 

II  is  tnen  determined  that  compound  interest  is  not  war- 
ranted by  law.  Parties  who  make  contracts  are  presumed 
to  know  the  law,  and  that  they  make  their  contracts  in 
direct  reference  to  it,  Davis  and  Fredericks  it  must  be  con- 
sidered, then,  knew  the  law  did  not  allow  compound  inter- 
est, arid  that  the  agreement  made  therefor  was  not  war- 
ranted by  law,  and  would  not  be  enforced. 

Davis,  then,  in  contemplation  of  law,  did  not  contract  to 
sell  his  one-half  of  said  property  for  any  more  than  the 
amount  specified  in  said  notes,  together  with  simple  interest 
on  the  gold  dust  note.  There  was  nothing  then  inequitable 
in  compelling  him  to  convey  this  property  for  the  full 
amount  of  said  notes,  together  with  simple  interest  on  the 
gold  dust  note,  as  per  agreement  therefor.  I  do  not  think 
it  was  necessary  for  \Vilson  to  set  forth  that  this  transaction 
was  tainted  with  compound  interest,  and  ask  relief  there 


196  WILSON  v.  DAVIS.  [Aug.  T., 

from  in  this  action.  The  same  principle  is  not  involved  as 
in  usury.  For  the  taking  of  usury,  the  statute  generally 
appends  some  penalty.  The  statute  which  creates  this  pen- 
alty must  be  set  up  before  the  penalty  can  be  exacted. 
Here,  however,  the  question  was  presented  to  the  court : 
How  much  was  Davis  legally  entitled  to  recover  ? 

It  appeared  upon  the  face  of  the  note  that  it  contained 
a  contract  for  compound  interest. 

It  certainly  could  not  have  been  necessary  for  plaintiff  to 
point  out  this  fact  to  the  court.  It  certainly  could  not  be 
presumed  that  a  court  could  not  observe  this  fact  without 
it  was  specifically  pointed  out  to  it  by  an  allegation  in  the 
pleadings.  It  is  a  well-known  rule  in  pleadings  that  a  party 
may  allege  facts  which  show  that  he  is  not  entitled  to  re- 
cover. Had  Davis  been  paid  all  that  he  was  entitled  to,  and 
had  he  brought  a  suit  for  the  compound  interest  agreed  to 
be  paid,  and  the  complaint  expressed  this,  it  would  not  have 
been  necessary  for  Fredericks  to  have  filed  an  answer,  set- 
ting up  that  it  was  compound  interest. 

A  general  demurrer  to  the  complaint  would  have  raised 
the  issue,  whether  he  was  legally  entitled  to  recover  it,  set- 
ting forth  that  the  complaint  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  The  defect  would  be  one  of 
such  a  nature,  that  even  a  failure  to  demur  would  not  waive 
it.  It  could  be  raised  at  any  time,  for  it  would  show  upon 
its  face  that  there  was  no  legal  consideration  to  support  the 
agreement  to  pay  it. 

In  this  case,  the  part  of  the  contract  which  stipulates  for 
compound  interest  is  capable  of  being  separated  from  the 
rest  of  the  contract,  and  as  to  this  the  court  was  warranted 
in  saying  there  was  no  legal  consideration  to  support  it. 
There  is  one  thing  to  be  noticed  in  this  action.  Davis  does 
not  ask  to  be  relieved  from  the  contract  to  convey,  if  he 
cannot  receive  compound  interest,  but  stands  upon  his  con- 
tract, and  asks  for  the  complete  fulfillment  of  it  before  he 
conveys.  The  case  might  present  a  different  phase,  if  Davis 
should  have  asked  to  be  relieved  of  the  contract,  and  had 
tendered  what  he  had  received  thereon.  There  is  nothing 


1870.]  WILSON  a.  DAVIS.  197 

in  the  point  that  Davis  did  not  receive  proper  notice  of  Wil 
son's  intention  to  pay  off  said  notes.  Long  before  the  plead- 
ings were  tiled,  upon  which  the  case  was  finally  tried,  the 
record  shows  that  these  notes  had  become  due.  The  notice 
required  by  the  contract,  between  Davis  and  Fredericks, 
was  to  be  given  before  the  notes  became  due.  Appellants 
complain  because  Perkins  was  not  allowed  to  retain  posses- 
sion of  the  property.  This  might  have  been  a  joint  cause 
of  complaint,  on  the  part  of  both  Davis  and  Perkins,  before 
the  final  adjudication  in  this  matter,  and  the  decree  of  the 
court,  giving  Davis  all  his  legal  rights.  When  the  court 
had  provided  for  the  payment  of  the  debt  to  Davis,  and  the 
cancellation  of  the  deed  of  trust,  it  could  not  provide  any 
thing  in  relation  to  the  restoration  of  the  possession  of  said 
property  by  Perkins,  in  accordance  with  the  terms  of  said 
deed  of  trust. 

The  decree  of  the  court,  ordering  the  sale  of  the  property 
in  controversy,  before  Davis  was  paid  the  full  amount  the 
court  found  due  against  him,  was  perhaps  a  little  irregular 
as  to  Davis,  yet,  the  irregularity  is  not  one  that  should  occa- 
sion a  reversal  of  the  decree. 

The  decree  in  no  instance  orders  Davis  to  convey  the 
interest  held  in  his  name  until  he  received  the  full  amount 
due  him,  and  the  sale  of  the  property  could  in  no  manner 
affect  his  rights. 

It  made  no  difference  with  Davis  from  what  legal  source 
he  was  paid  the  amount  due  him.  The  court  might  have 
reasonably  inferred  that  the  small  amount  it  had  found  due 
Davis  would  surely  be  paid  out  of  the  sale  of  this  property, 
upon  which  he  had  the  deed  of  trust,  and  that  it  was  not 
necessary  that  the  cause  should  remain  longer  in  litigation. 
As  it  treated  the  answer  of  Davis  as  a  cross  bill,  the  sale  of 
the  undivided  one-half  of  said  property  for  that  purpose 
was  certainly  proper.  As  between  Fredericks  and  Wilson 
it  was  proper  that  this  property  should  be  sold.  The 
appellants  complain  that  by  the  articles  of  partnership 
between  Fredericks  and  Wilson,  the  excess  of  funds 
either  contributed  to  the  firm  was  to  be  paid  by  the  com- 
pany out  of  the  net  earnings  of  the  mill.  From  the  find- 


198  WILSON  v.  DAVIS.  [Aug.  T., 

iiigs  of  the  court  it  would  appear  that,  in  pursuance  of  the 
articles  of  copartnership,  Fredericks  and  Wilson  conducted, 
for  some  time  at  least,  the  business  for  which  the  partner- 
ship was  formed.  There  was  no  issue  presented  in  the 
pleadings  that  required  the  court  to  find  whether  or  when 
this  partnership  had  been  terminated,  if  at  all.  It  would 
seem  that  the  plaintiff  in  his  pleadings  regards  the  partner 
ship  terminated,  and  Fredericks  alleges  in  his  answer  that 
it  was  never  formed. 

Taking  the  findings  of  the  referee,  Hedges,  and  those  of 
the  court,  in  connection  with  the  articles  of  copartnership, 
\vhich  are  a  part  of  the  record  made  so  by  Fredericks,  there 
cannot  be  much  doubt  but  that  for  a  time  the  partnership 
did  exist.  The  court  may,  however,  have  properly  consid- 
ered that  the  partnership  had  been  terminated  before  the 
commencement  of  this  action. 

There  was  no  time  specified  for  the  duration  of  the  partner- 
ship. Either  party  could  terminate  it  by  giving  proper  no- 
tice, or  the  termination  might  be  inferred  from  the  conduct 
of  the  parties.  Story  on  Part.  272. 

There  was  enough  in  the  conduct  of  Fredericks  to  justify 
the  court  in  taking  the  view  that  the  partnership  had  been 
dissolved.  When  the  partnership  was  dissolved  the  stipu- 
lation above  referred  to  was  annulled.  Fredericks,  while 
refusing  longer  to  continue  the  partnership,  cannot  demand 
of  Wilson  to  carry  out  the  stipulations  of  the  articles  which 
made  the  copartnership.  When  the  partnership  was  dis- 
solved no  company,  in  accordance  with  this  stipulation,  was 
left  to  pay  Wilson  for  his  advances  out  of  the  net  earnings 
of  the  said  mill.  As  far  as  Fredericks  and  Wilson  are  con- 
cerned, the  court  undoubtedly  treated  this  as  an  action  to 
wind  up  the  affairs  of  the  partnership  which  had  already 
been  dissolved,  and  to  give  each  his  due  rights  in  the  part 
nership  assets.  This  could  be  done  only  by  a  sale  of  the 
property  belonging  to  the  firm,  which  is  the  usual  practice 
of  courts  of  equity  in  such  cases. 

Appellants  also  claim  that  Davis  should  have  been  allowed 
a  reasonable  attorney's  fee  in  collecting  what  the  court 


1870.]  WILSOW  0.  DAVIS.  199 

found  due  him.  The  only  allegation  in  defendant  Davis' 
answer,  or  cross-bill,  which  would  warrant  the  court  in 
awarding  the  same,  is  the  one  after  he  had  alleged  the 
amount  due  him  on  the  notes  for  the  sale  of  said  property, 
which  is  as  follows:  "Besides  the  sum  of  six  thousand 
five  hundred  dollars  damages,  and  expenses  incurred  in 
attending  to  and  protecting  the  rights,  remedies  and  equities 
of  said  Davis  in  and  about  the  premises  which  said  Freder- 
icks stipulated  and  agreed  to  pay  and  refund  to  said  Davis, 
before  said  Davis  was  required  to  make  a  deed  to  said  prop- 
erty." 

1  u  the  first  place  this  allegation  is  not  specific  enough  to 
warrant  the  court  in  awarding  any  damages  or  any  remu- 
n< -ration  for  expenses.  It  would  be  necessary  for  the  an- 
swer  to  show  wherein  Davis  had  been  damaged,  and  also 
what  expenses  and  costs  he  had  incurred  in  protecting  his 
rights.  It  is  not  enough  for  a  man  to  say  he  has  incurred 
costs  and  expenses  in  protecting  rights.  What  the  law  re- 
quires of  a  party  is  to  show  for  what  he  had  incurred  these 
expenses  and  costs.  The  terms  "rights,"  "remedies"  and 
"equities''  have  no  such  determined  meaning  in  a  pleading 
as  goods,  wares,  merchandise  and  chattels. 

In  the  next  place  the  replication  to  this  answer  does  pur- 
port to  put  in  issue  this  allegation,  and  although  the  denial 
maybe  said  to  be  defective,  perhaps,  no  objection  was  taken 
to  it,  however.  Hence,  if  the  court  failed  to  find  upon  this 
issue,  it  will  be  supposed  that  Davis  failed  to  establish  it. 

This  court  cannot  now  consider  whether  or  not  the  order 
of  sale  of  the  court  was  stayed  by  the  bond  filed.  What 
this  court  is  required  here  to  determine  is,  whether  or  not 
the  decree  of  the  court  below  should  be  affirmed. 

Decree  of  the  court  below  is  affirmed. 

Exceptions  overruled. 


200  AYLESWORTH  x>.  REEOE.  [Aug.  T.; 


AYLESWORTH,  respondent,  v.  REECE  et  al.,  appellants. 

CASH  AFFIRMED  RELATING  TO  JURY  LAW.  The  case  of  Kleinschmidt  v.  Dunphy, 
ante,  p.  118,  deciding  that  three-fourths  of  a  jury  cannot  find  a  verdict  ir 
common-law  actions,  where  the  value  at  controversy  exceeds  $20,  affirmed. 

Appeal  from  the  First  District,  Madison  County. 

THIS  action  was  tried  by  a  jury  in  the  district  court,  in 
May,  1869,  and  nine  of  the  jur}7"  returned  a  verdict  for  plain- 
tiff, for  $800.  Three  jurymen  dissented.  The  court,  WAR- 
KEN,  J.,  entered  judgment  on  the  verdict,  and  defendants 
appealed. 

The  decision  upon  one  exception  renders  unnecessary  a 
statement  of  the  facts. 

H.  N.  BLAKE,  for  appellants. 
WORD  &  SPRATT,  for  respondent. 

SYMES,  J.  This  was  an  action  for  damage  for  breach  of 
contract,  plaintiff  alleging  that  defendants,  in  consideration 
that  he  would  build  an  arastra  for  crushing  quartz,  agreed 
to  deliver  to  him  one  hundred  tons  of  good  gold  bearing 
quartz  ;  that  he  built  the  arastra,  but  defendants  failed  to 
deliver  the  quartz. 

Defendants  denied  the  allegations  of  the  complaint.  The 
case  was  tried  before  a  jury  at  the  May  term  of  the  Madison 
county  district  court,  and  a  verdict  found  for  the  plaintiff 
for  $800,  which  verdict  was  signed  by  nine  jurymen  only. 
Judgment  was  rendered  on  the  verdict,  and  the  defendants 
excepted  to  the  verdict  and  judgment,  for  the  reason  that  it 
was  not  the  verdict  of  twelve  men  but  of  nine. 

The  question  presented  is,  whether  the  judgment  is  erro- 
neous, being  rendered  on  a  verdict  of  nine  jurymen,  and 
no  consent  of  parties  that  the  ease  should  be  tried  by  less 
than  twelve.  This  court  has  decided  in  the  case  of  Klein- 
Schmidt  et  al.  v.  Dunphy  et  al.,  that  so  much  of  the  law 


1870.]          COMANCHE  MINING  Co.  «.  RUMLEY,  201 

of  1869,  passed  by  the  legislative  assembly,  as  provides  that 
three-fourths  of  a  jury  may  find  a  verdict  in  common-law 
actions,  is  unconstitutional  and  void. 

The  judgment  must  be  reversed,  and  cause  remanded  for 
new  trial. 

Judgment  reversed. 


COMANOHE   MINING   COMPANY,   respondent,   «.   RUMLET 
et  al.,  appellants. 

PRACTICE  — judgment  entered  at  succeeding  term.  Judgment  can  be  entered  on 
a  verdict  at  a  term  of  the  court  succeeding  that  in  which  it  was  found  by 
the  jury,  if  the  clerk  has  failed  to  enter  the  same. 

PRACTICE — judgment  —  court  can  amend.  The  court  can  amend  a  judgment 
at  a  term  succeeding  that  in  which  it  was  entered,  by  inserting  the  names 
of  the  defendants  that  were  specified  in  the  verdict. 

PRACTICE — judgment  against  defendants  individually.  Judgment  can  be  en- 
tered against  defendants  individually,  who  are  named  and  described  in  the 
complaint  as  a  certain  company,  although  they  are  not  members  of  it,  if 
the  jury  finds  that  they  are  liable  individually. 

Appeal  from  the  Second  District,  Deer  Lodge  County. 

TEN  persons,  who  described  themselves  individually  and 
as  doing  business  under  the  style  of  the  Comanche  Mining 
Company,  commenced  this  action  on  February  25,  1868, 
against  "C.  Rumley,  Louis  Bugher,  Peter  Rea,  II.  Comly 
and  other  parties  unknown  to  these  plaintiffs,  who  are 
doing  mining  business  under  the  firm  name  and  style  of  the 
Rumley  and  Bugher  Mining  Company,"  in  the  district 
court  for  Deer  Lodge  county.  On  October  8,  1868,  Peter 
H.  Rea  and  Harry  R.  Comly  hied  an  answer.  Rumley  and 
Bugher  also  answered  on  the  same  day. 

The  cause  was  tried  in  May,  1869,  and  the  jury  returned 
the  following  verdict,  which  was  filed  by  the  clerk  of  the 
court  on  May  26,  1869. 

"  John  Edwards,  Daniel  Brown,  Duncan  Cameron,  George 
Caulderwood,  Benjamin  Franklin,   Nathaniel  Heil,   H.  P 
VOL.  I.  —  26. 


202  COMANCHE  MINING  Co.  v.  RUMLEY.     [Aug.  T., 

Drennin,  Homer  Cogswell,  Emanuel  Brown,  Jolin  Gerber, 
who  are  doing  a  mining  business  under  the  firm  name  and 
style  of  the  Comanche  Mining  Company,  plaintiffs,  v. 
C.  Rumley,  Louis  BugTier,  Peter  Rea  and  H.  Comly. 

We,  the  jury,  find  for  the  plaintiffs  and  against  the 
defendants  for  the  possession  of  claims  Nos.  one  (1),  two 
(2),  three  (3),  four  (4)  and  five  (5)  west  from  discovery, 
together  with  discovery  claim  and  claim  No.  one  (1),  east 
from  discovery,  on  the  Comanche  Extension  Lode,  as  de- 
scribed in  plaintiff's  complaint,  and  assess  their  damage  at 
one  ($1)  dollar." 

The  jury  also  returned  their  findings  upon  fourteen  issues, 
which  were  submitted  by  the  court,  and  found  that  the 
Rumley  and  Bugher  Mining  Company  was  composed  of  C. 
Rumley  and  L.  Bugher. 

At  the  next  term  of  the  court,  in  September,  1869,  the 
following  judgment  was  entered  on  the  verdict : 

"TERRITORY  OF  MONTANA,         ) 
DEER  LODGE  COUNTY.  ( 

"In  the  Second  Judicial  District  Court : 

''COMANCHE  MINING  COMPANY  o.  RUMLEY  AND  BUGHEB 
MINING  COMPANY. 

"This  cause  having  been  tried  before  KNOWLES,  J.,  and  a 
jury,  as  to  certain  issues  of  law  and  fact,  having  been 
argued,  and  a  verdict  of  the  jury  having  been  returned 
in  favor  of  said  plaintiffs. 

"  Wherefore,  it  is  adjudged  that  the  said  Comanche  Min- 
ing Company,  plaintiffs  herein,  recover  of  the  defendants,  the 
Rumley  and  Bugher  Mining  Company,  the  possession  of 
(description  of  the  property),  and,  further,  that  the  plaintiffs 
recover  of  the  defendants  the  sum  of  81  damages  for  the 
withholding  thereof,  and  also  $1,381.05  costs  of  this  suit, 
amounting,  in  whole,  to  $1,382.05. 

"H.  KNOWLES,  Judge." 

At  the  next  term  of  the  court,  in  December,  1869,  the 
plaintiffs  moved  to  amend  the  foregoing  judgment,  by 


1870.]  COMANCHE  MINING  Co.  v.  RUMLEY.  203 

inserting  the  names  of  the  plaintiffs  and  defendants,  and 
charging  the  amount  of  the  costs.  The  motion  was  sus- 
tained by  the  court,  KNOWLES,  J.,  and  the  judgment  was 
entered  on  December  24,  1869,  for  Edwards  and  the  other 
plaintiffs,  naming  all  of  them,  and  against  C.  Rumiey, 
Louis  Bugher,  Peter  Rea  and  H.  Comly,  for  the  possession 
of  the  property  in  controversy  and  $1,289.05. 

At  the  trial  of  the  cause,  the  attorneys  stipulated  in  writ- 
ing that  all  the  instructions  of  the  court  should  be  deemed 
duly  excepted  to. 

The  defendants  Rea  and  Comly  appealed  from  the  judg- 
ment and  amended  judgment. 

WOOLFOLK  &  TOOLE,  for  appellants. 

The  defendant  is  sued  as  a  company.  The  appellants 
take  issue  and  deny  that  the  company  is  composed  of  Rea, 
Comly,  Rnmley  and  Bugher.  The  jury  find  that  Rumiey 
and  Bugher  composed  the  company.  No  judgment  could 
be  rendered  except  against  the  company.  The  court,  with- 
out notice  to,  or  the  appearance  of,  Rea  and  Comly,  rendered 
judgment  against  them.  The  court  lost  jurisdiction  of  the 
defendants,  and  cause,  after  the  May  and  September  terms 
had  adjourned.  The  judgment  in  December,  1869,  is  not  an 
amendment  as  to  appellants.  The  original  decree  included 
all  the  members  of  the  company,  against  whom  the  action 
was  brought.  If  the  respondents  were  dissatisfied  with  the 
original  decree,  this  court  should  have  corrected  it.  1  Estee's 
PL  30.  57. 

No  judgment  was  entered  within  the  time  prescribed  by 
law.  Leniston  v.  Swan,  33  Cal.  483  ;  Wallace  v.  Eldredge, 
27  id.  495  ;  Bell  v.  Thompson,  19  id.  708 ;  Swain  v.  Naglee, 
19  id.  127;  Br anger  v.  Chevalier,  9  id.  351;  Morrison 
Dapman,  3  id.  255. 

The  court  erred  in  its  instructions. 

MAYHEW  &  MCMURTRY,  for  respondents. 
The  court  had  jurisdiction  over  the  cause,  and  all  defend- 
ants appearing  in  the  record  at  any  subsequent  terms,  after 


204  COM ANOHE  MINING  Co.  v.  RUMLEY.     [Aug.  Tv 

the  May  and  September  terms  of  court.  If  the  judgment 
was  defective  as  to  parties,  the  court  had  authority  to  order 
the  judgment  amended,  and  cure  defects  or  omissions. 
Swain  v.  Naglee,  19  Gal.  127;  Lemston  v.  Swan,  33  id. 
480  ;  Browner  v.  Dams,  15  id.  9. 

A  court  can  amend  a  judgment  as  to  parties,  amounts  of 
money,  etc.,  when  the  record  discloses  what  the  actual 
judgment  should  be.  Close  v.  Gillispie,  3  Johns.  526 : 
Mechanics''  Bank  v.  Minithorn,  19  id.  245  ;  Lee  v.  Curtis, 
17  id.  85. 

SYMES,  J.  This  was  an  action  for  the  recovery  of  certain 
quartz  lodes  and  damages  for  detention.  The  cause  was 
tried  at  the  May  term  of  the  Deer  Lodge  district  court,  and 
a  verdict  found  for  the  plaintiff,  for  possession  of  the  prop- 
erty claimed,  and  one  dollar  damages.  No  judgment  was 
rendered  at  said  May  term  on  the  verdict.  At  the  follow- 
ing September  term  a  judgment  was  rendered  against  two 
of  the  defendants,  Rumley  and  Bugher  ;  and  at  the  follow- 
ing December  term,  1869,  the  judgment  was  amended  by 
the  court  and  rendered  against  all  the  defendants,  Rumley, 
Bugher,  Rea  and  Comly.  The  case  comes  up  on  appeal 
from  the  judgment  roll,  there  being  no  statement,  and  the 
real  question  to  consider  is,  did  the  court  err  in  rendering 
judgment  on  the  verdict  at  the  next  term,  and  in  amending 
or  changing  the  judgment  and  rendering  it  against  the  other 
two  defendants  at  the  next  following  term. 

The  suit  was  against  four  defendants,  naming  them  per- 
sonally, and  describing  them  as  the  Rumley  and  Bugher 
Mining  Company.  The  verdict  named  all  the  plaintiffs  in- 
dividually, and  all  the  defendants  individually,  and  found 
against  them  all  for  the  possession  of  the  quartz  claim  and 
one  dollar  damages.  The  clerk  neglected  his  duty  as  pre- 
scribed by  the  197th  section  of  the  Civil  Code,  and  did  not, 
witliin  twenty-four  hours,  enter  judgment  on  the  verdict. 

The  authorities  are  plain  to  the  effect,  that  the  court  can. 
after  the  term  has  expired,  correct  an  error  appearing  on 
the  judgment-roll  or  from  the  face  of  the  papers,  when  it  is  a 


1870.]  COMANCHE  MINING  Co.  v  RUMLEY.  205 

clerical  error,  or  one  arising  from  neglect  of  an  officer  of  the 
court.  In  Close  v.  Gillispie,  3  Johns.  527,  the  court  say 
there  can  be  no  doubt  that  an  amendment  was  proper,  when 
judgment  had  been  entered  on  a  warrant  of  attorney,  and 
the  attorney  had  neglected  to  sign  the  plea,  and  his  name 
was  not  inserted  in  the  roll ;  and  cite  a  case  where  an  amend- 
ment, nunc  pro  tune,  was  allowed  after  lapse  of  several 
terms,  where  the  clerk  who  taxed  the  costs  had  neglected  to 
sign  the  roll ;  also  refer  to  an  English  case,  where  the  court 
allowed  amendments,  rendered  necessary  by  neglect  of  at- 
torneys, saying  that  attorneys  were  officers  of  the  court. 
In  the  case  of  Tfie  President  and  Directors  of  Mechanics1 
Bank  v.  MinitJiorn,  19  Johns.  245,  the  court  say  they  have 
no  doubt  of  their  power  to  set  aside  a  satisfaction  of  a 
judgment,  and  allow  another  computation  of  the  amount 
due  and  amendment  of  the  judgment,  when  it  appeared 
that  the  mistake  was  one  of  the  clerk  of  the  court,  and  the 
amendment  was  ordered.  The  cases  of  Swain  v.  Neglee,  19 
Gal.  127,  and  Lemston  v.  Swan  and  others,  33  id.  485,  are 
to  the  same  effect.  In  the  latter  case  the  decree  did  not 
mention  who  was  liable  for  the  deficiency,  so  the  clerk  could 
not,  on  the  coming  in  of  the  sheriff's  report  on  foreclosure 
sale,  enter  up  judgment  for  the  deficiency ;  and  the  court 
allowed  the  amendment  by  inserting  the  name  of  the  party 
liable  for  the  deficiency  after  the  term  when  judgment  was 
rendered. 

Under  these  authorities  it  is  clear  that  the  court  below 
had  the  power  to  render  judgment  at  the  next  term  on  the 
verdict,  when  the  clerk  had  neglected  to  do  so  ;  and  to  there- 
after amend  the  judgment  by  inserting  the  names  of  all  the 
defendants  named  in  the  verdict  of  the  jury. 

Appellants  contend  that  the  court  erred  in  rendering  judg- 
ment at  any  time  against  Rea  and  Comly,  because  all  the 
defendants  were  sued  as  a  company,  and  the  jury,  by  a 
special  finding,  found  that  Rea  and  Comly  were  not  mem- 
bers of  the  company.  But  the  defendants  were  all  sued  by 
name  for  ouster  of  possession  and  trespass  to  property  ;  the 
additional  allegation  that  they  were  a  company,  and  de- 


206  DAHLER  v.  STEELE.  [Aug  T.> 

scribing  them  as  such,  cannot  affect  the  verdict  or  judgment 
when  the  jury  found  them  all  individually  guilty  of  the 
acts  complained,  in  the  general  verdict,  although  some  of 
them  were  found  not  to  be  members  of  the  company. 

Appellants  further  except  to  the  ruling  of  the  court,  in 
refusing  some  instructions  offered  by  defendants.  All  the 
law  applicable  to  the  case  seems  to  be  contained  in  the 
instructions  given  by  the  court  on  its  own  motion,  and  at 
request  of  plaintiffs.  Those  refused  are  in  effect  a  repetition 
of  others  given,  or  are  based  on  the  theory  that  defendants 
could  obtain  affirmative  relief  in  the  action. 

The  judgment  below  is  affirmed. 

Exceptions  overruled. 


DAHLER,  appellant,  v.  STEELE,  respondent. 

REPLEVIN  — property  returned  if  action  is  dismissed.  A  judgment  for  costs  and 
the  return  of  property  is  properly  rendered  against  a  party  who  dismisses 
his  action  for  the  recovery  of  the  possession  of  the  property,  after  he  has 
obtained  the  same  by  means  of  the  process  of  the  court  in  the  action. 

DISMISSAL  OF  ACTION — a  final  judgment.  The  dismissal  of  an  action  is,  in 
effect,  a  final  judgment  against  the  plaintiff,  although  he  has  the  right  to 
bring  a  new  action  for  the  same  subject-matter. 

Appealfrom  the  Third  District,  Lewis  and  Clarke  County. 

DAHLER  commenced  this  action  on  February  1,  1870,  in 
the  district  court,  against  Steele,  who  was  then  the  sheriff 
of  Lewis  and  Clarke  county,  to  recover  the  possession  of 
certain  personal  property  valued  at  $4,750,  and  also  $500 
damages  for  its  wrongful  detention.  The  affidavit  and 

o  <— • 

undertaking  required  by  law  were  filed,  to  enable  the  offi- 
cer to  take  the  property  from  Steele.  After  the  defendant 
had  demurred  to  the  complaint,  the  plaintiff  issued  the  fol- 
lowing order  to  the  clerk  of  the  court:  "The  clerk  will 
please  dismiss  the  above  cause  at  the  costs  of  the  plaintiff." 
After  the  court  had  taken  the  matter  of  dismissal  undei 
advisement,  the  plaintiff  filed  the  following  motion  : 


1870.]  DAHLER  v.  STEELE.  201 

"Now  comes  the  above  plaintiff  by  his  attorneys.  Wool- 
folk  &  Toole,  and  moves  the  court  to  order  the  same  dis- 
missed." 

The  court,  SYMES,  J.,  then  ordered  the  cause  to  be  dis- 
missed  at  the  plaintiff's  costs,  and  that  the  property  in  con- 
troversy be  returned  to  the  defendant  by  the  plaintiff.  The 
defendant  excepted  to  the  order  requiring  the  return  of  the 
property. 

WOOLFOLK  &  TOOLE,  for  appellant. 

The  appellant  had  a  right  to  dismiss  his  suit  at  any  time, 
oefore  trial,  on  paying  costs,  there  being  no  counter-claim. 
The  court  had  no  power  or  jurisdiction,  after  the  precipe  for 
dismissal  had  been  filed  with  the  clerk,  to  retain  appellant 
in  court  against  his  will,  and  adjudicate  upon  his  rights. 
Civil  Prac.  Act,  §  148 ;  Hancock  D.  Co.  v.  Bradford,  13 
Cal.  637 ;  Brown  v.  Harter,  18  id.  77 ;  Reed  v.  Calderwood, 
22  id.  463  ;  Dimick  v.  Deringer,  32  id.  488. 

The  court  erred  in  making  the  order  for  the  return  of  the 
property,  upon  a  dismissal  of  his  suit  by  appellant.     This 
should  be  determined  in  an  action  upon  the  replevin  bond 
Civil  Prac.  Act,  §  102  ;  Mills  v.  Gleason,  21  Cal.  274. 

CHUMASEBO  &  CHADWICK,  for  respondent. 

The  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  It  should  allege  a  right  of  possession, 
and  the  facts  which  entitle  the  appellant  to  the  possession. 
It  should  allege  the  ownership  of  appellant,  or  his  special 
property,  if  he  has  such.  Pattison  v.  Adams,  7  Hill.  126. 

A  party  cannot  commence  an  action  of  replevin,  and, 
after  having  thereby  obtained  possession  of  the  property, 
discontinue  his  action,  without  placing  the  defendant  in 
statu  quo ;  and,  in  said  case,  the  defendant  is  entitled  to  a 
return  of  the  property.  Wilson  v.  WJieeler,  6  How.  Pr.  50  ; 
Morris  on  Replevin,  114;  Voorhies'  Code.  390,  note  g ;  \ 
Whit.  Pr.  248. 

The  whole  proceedings  in  this  case  were  radically  defect- 
ive from  the  commencement,  and  a  fraudulent  advantage 


208  DAHLER  v.  STEELE.  [Aug.  T.y 

has  been  acquired  under  color  of  law.    The  court  below 
properly  decided  that  this  advantage  could  not  be  retained. 

KNOWLTCS,  J.  The  appellant,  Dahler,  brought  an  action 
to  recover  the  possession  of  certain  personal  property  from 
the  defendant,  Steele.  There  is  nothing  in  the  record  which 
shows  that  Dahler  ever  obtained  possession  of  this  property. 
The  cause,  however,  was  argued  by  counsel  as  though  this 
was  the  fact,  and,  as  every  presumption  of  this  court  must 
be  in  favor  of  the  ruling  of  the  court  below,  it  will  be  con- 
sidered that  such  was  the  case.  The  appellant  must  pre- 
sent record  enough  to  clearly  show  error.  If  such  was  not 
the  case,  it  devolved  upon  him  to  show  it.  The  appellant, 
after  he  had  acquired  possession  of  this  property  by  means 
of  the  process  of  the  court,  moved  the  court  to  dismiss  the 
action  at  his  costs.  This  was  granted,  and,  on  application 
of  the  attorneys  for  respondent,  an  order  was  entered  that 
the  appellant  return  this  property  to  the  respondent.  The 
ruling  of  the  court  below,  in  awarding  this  order  to  respond- 
ent, is  assigned  as  error. 

The  means  afforded  the  plaintiff  by  the  Code  of  obtaining 
possession  of  personal  property  pending  an  action  therefor, 
is  as  much  an  auxiliary  remedy  as  arrest,  attachment  or 
injunction.  When  the  original  remedy  fails,  the  auxiliary 
remedy  involved  in  aid  thereof  becomes  extinct.  It  is  true 
a  party  may  dismiss  a  cause  upon  the  payment  of  costs. 
The  necessary  result,  however,  of  this  must  follow.  All 
remedies  invoked  in  aid  of  it  must  go  with  it. 

It  is  the  object  of  courts  when  a  cause  is  dismissed,  as 
far  as  they  can,  to  put  the  defendant  in  the  same  condition 
he  was  before  suit.  Hence,  his  costs  are  awarded  him.  If 
he  has  been  arrested,  he  is  released.  If  an  injunction  has 
been  awarded,  it  is  dissolved,  and  he  permitted  to  perform 
the  acts,  from  the  doing  of  which  he  was  restrained.  See 
Dowling  et  al.  v.  Palack  et  al..  18  Cal.  625.  If  an  attach- 
ment has  issued,  the  defendant  is  entitled  to  a  return  upon 
making  a  demand  of  the  officer.  Drake  on  Attach.,  §§  285. 
381-388. 


1870.]  DAHLER  v.  STEELE.  209 

Undoubtedly,  the  only  reason  why  the  defendant  is  not 
awarded  a  judgment,  for  the  return  of  his  property  in  at- 
tachment cases,  is,  because  the  officer  is  not  a  party  to  the 
action.  It  would  seem  that,  in  an  action  to  recover  the  posses- 
sion of  personal  property,  something  more  than  costs  ought 
tr  be  awarded.  The  plaintiff  has  obtained  the  possession 
3f  the  defendant's  property,  by  means  of  a  remedy  which, 
by  the  dismissal  of  the  original  action,  becomes  extinct.  He 
is  a  party  to  the  action,  and  if  the  rule  is  to  be  followed 
that  the  defendant  is  in  such  cases  to  be  put  in  as  good  a 
condition  as  lie  was  before  the  suit,  if  within  the  power  of 
the  court,  I  cannot  see  why  a  return  of  the  property  should 
not  be  awarded.  If  the  court  can  prevent  it,  a  plaintiff 
ought  not,  in  such  a  way,  to  be  permitted  to  recover  any 
advantage. 

The  dismissal  of  this  action  was  in  effect  a  final  judgment 
against  the  plaintiff  therein.  As  between  the  parties  there- 
to, as  far  as  it  is  concerned,  it  stands  as  though  all  the  issues 
offered  in  the  complaint  had  been  found  for  the  defendant, 
although  it  may  not  affect  their  right  to  bring  a  new  action, 
involving  the  same  subject-matter.  See  Ltese  v.  Sherwood, 
21  Cal.  151,  and  Dowling  et  al.  v.  P alack  et  al.,  18  id.  625. 

If  this  cause  had  been  tried  and  all  the  issues  found  for 
the  defendant,  there  would  be  no  doubt  but  that  the  defend- 
ant would  be  entitled  to  a  judgment  for  a  return  of  the 
property.  Yet,  as  we  have  seen,  this  was  the  very  effect, 
as  far  as  this  action  was  concerned,  of  the  dismissal  on  the 
part  of  the  plaintiff.  In  all  such  cases,  I  think,  the  judg- 
ment of  the  court  ought  to  be,  that  the  defendant  have 
judgment  for  costs,  and  for  a  return  of  the  property,  if 
asked. 

The  judgment  of  the  court  below  is  therefore  affirmed, 
with  costs. 

Exceptions  overruled. 
Vol.  1-27. 


210  DAVIS  0.  GEKMAINE.  [Aug.T.r 


DAVIS,  appellant,  v.  GERMAINE,  respondent. 

AGREEMENT — objections  not  regarded  without  a  statement.  This  court  will  not 
regard  objections  that  a  verdict  is  against  law  and  evidence,  if  there  is  no 
settled  statement. 

PRACTICE  —  objection  not  considered  without  an  exception.  This  court  will  not 
consider  an  objection  that  oral  instructions  were  given  to  the  jury  contrary 
to  the  statute,  if  no  exception  was  properly  taken  at  the  time. 

AGREEMENT — waiver  of  condition.  An  agreement  cannot  be  rescinded  by  the 
failure  of  a  party  to  perform  a  condition  which  has  been  waived. 


Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

DAVIS  filed  his  amended  complaint  in  the  district  court, 
on  October  13,  1869,  and  demanded  judgment  against  Ger- 
maine  for  $5,000,  and  interest  for  money  loaned  and  ad- 
vanced under  a  contract.  The  complaint  alleged  that  the 
times,  when  this  money  was  to  be  loaned  and  advanced 
under  the  written  contract,  were  changed  and  altered  at  the 
special  request  of  defendant.  The  defendant  answered  in 
March,  1870,  and  denied  that  the  times  referred  to  in  the 
contract  were  altered  at  his  request,  and  alleged  that,  under 
the  contract,  the  money  sued  for  was  not  due  until  eighteen 
months  after  June  9,  1869. 

The  cause  was  tried  in  March,  1870,  and  the  jury  returned 
a  verdict  for  the  defendant.  The  court,  SYMES,  J.,  gave 
written  and  oral  instructions  to  the  jury.  At  the  sixth  ses- 
sion of  the  legislative  assembly,  which  was  concluded  on 
January  7,  1870,  a  law  was  passed  which  required  instruc- 
tions in  the  trial  of  any  cause  to  be  in  writing.  No  attorney 
called  the  attention  of  the  court  to  this  law,  and  no  excep- 
tion was  taken  to  the  action  of  the  court  in  charging  the 
jury  orally. 

The  plaintiff' s  motion  for  a  new  trial  was  refused  by  the 
court,  SYMES,  J.,  and  plaintiff  appealed. 

CHUMASEIIO  &  CHADWICK.  for  appellant. 
The  court  erred  in  giving  1  he  oral  and  written  instructions 
to  the  jury.     2  Pars,  on  Cont.  184-186 


1870.]  DAVIS  v.  GERMAINE.  211 

The  oral  instructions  were  so  given  in  violation  of  the 
statutes  of  the  Territory. 
The  verdict  is  contrary  to  law  and  evidence. 

WOOLFOLK  &  TOOLE,  for  respondent. 

Appellant  is  limited  to  the  grounds  set  forth  in  the  motion 
for  a  new  trial.  McCloud  v.  O>  Neall,  16  Cal.  392  ;  Pierce 
v.  Jackson,  21  id.  636. 

The  written  instructions  are  not  assigned  as  error  in  that 
motion.  The  alleged  error  of  the  court,  in  charging  the  jury 
orally,  was  not  saved  by  exception.  More  v.  Del  Valle,  28 
Cal.  174.  Unless  so  saved,  it  is  not  available  on  motion  for 
anew  trial.  Letter  v.  Putney,  7  CaL  423;  People  v.  Alt 
Fong,  12  id.  345 ;  McCartney  v.  Fitz  Henry,  16  id.  184 : 
Hicks  v.  Coleman,  25  id.  146. 

It  is  questionable  if  the  statute  requires  the  instructions 
to  be  in  writing. 

The  oral  charge  was  correct.  2  Pars,  on  Cont.  672,  673  ; 
California  v.  McCauley,  15  Cal.  429. 

If  erroneous,  the  appellant  could  not  be  injured  by  it.  3 
Estee's  PL  740. 

WARREN,  C.  J.  The  grounds  of  the  motion  for  a  new 
trial  in  this  cause  were,  1.  Insufficiency  of  the  evidence  to 
justify  the  verdict,  and  that  it  is  against  law.  There  is  n<> 
statement  settled  as  required  by  law,  and  hence  we  cannot 
consider  the  objection.  2.  That  the  court  instructed  the 
jury  orally.  If  this  be  a  fact,  it  has  not  been  properly  pre- 
served by  exception  taken  at  the  time,  and  is  not  presented 
in  the  record.  3.  That  the  said  oral  instruction  is  erroneous, 
and  misled  the  jury. 

The  complaint  sets  out  a  written  agreement  between  the 
parties,  and  avers  a  subsequent  modification  of  its  terms, 
made  at  the  instance  of  defendant,  and  alleges  the  perform- 
ance of  the  contract  on  his  part,  and  failure  on  the  pai't 
of  defendant.  The  answer,  in  effect,  admits  the  execution 
of  the  agreement  and  its  subsequent  alteration,  but  denies, 
simply,  that  such  alteration  was  made  at  defendant's  re- 
quest;  avers  performance  by  himself,  and  failure  on  the 


212  HARRIS  v.  SHONTZ.  [Aug.  T., 

part  of  plaintiff  to  perform  the  agreement.  The  contract 
being  an  entire  one,  the  only  issue  presented  was,  as  to  the 
compliance  of  the  respective  parties  with  the  terms  of  their 
agreement  as  finally  made  and  acted  on ;  and  the  court 
for  failure  of  defendant  to  comply  with  the  condition 
properly  instructed  the  jury,  in  substance,  that,  if  the 
plaintiff  waived  the  terms  of  the  agreement  in  the  particu- 
lar mentioned,  he  could  not  afterward  rescind  the  contract 
for  failure  of  defendant  to  comply  with  the  condition 
waived.  4.  That  the  instructions  given  at  the  request  of 
defendant  are  erroneous. 

We  see  no  error,  in  the  instructions  given,  sufficient  to 
disturb  the  verdict. 

The  judgment  is  affirmed. 

Exceptions  overruled. 

KNOWLES,  J.,  dissented. 


HARRIS,  respondent,  #.  SHONTZ  et  al.,  appellants. 

ACTION  FOB  DIVERSION  OF  WATER — practice — judgment  on  verdict  on  the  ma- 
terial issue.  In  an  action  to  recover  damages  for  the  diversion  of  water 
and  obtain  a  decree  of  title  and  perpetual  injunction,  the  verdict  of  the 
jury  that  plaintiff  is  entitled  to  the  water  is  a  finding  on  the  material  issue, 
and  entitles  him  to  a  judgment  for  costs  and  the  relief  sought. 

DAMAGES — injunction.  In  this  case  a  perpetual  injunction  was  properly  de- 
creed, although  the  jury  did  not  assess  any  damages. 

PLEADING  —  insufficient  denial.  A  denial  that  defendants  "wrongfully  and 
illegally"  diverted  certain  water,  is  an  admission  of  the  act  of  diversion. 

Appeal  from  the  First  District,  Madison  County. 

THIS  action  was  commenced  in  May,  1869,  against  Shontz 
and  three  other  parties,  to  recover  judgment  for  $500  dam- 
ages for  the  diversion  of  water  claimed  by  him  in  Wash- 
ington gulch,  Madison  county  ;  that  defendants  be  perpet- 
ually enjoined  from  diverting  the  same,  and  for  general 
equitable  relief.  The  defendants  answered,  and  prayed  for 
a  dissolution  of  the  temporary  restraining  order,  and  that 
defendants  be  adjudged  the  owners  of,  and  entitled  to,  the 
use  of  the  water. 

The  cause  was  tried  in  November,  1869,  by  a  jury,  that 


1870.]  HARRIS  v.  SHONTZ.  218 

returned  the  following  verdict:  "We,  the  jurors,  do  find 
the  plaintiff  entitled  to  one  hundred  and  fifty  inches  of  the 
water  in  Washington  gulch."     The  defendants  objected  to 
the  entry  of  the  verdict,  and  the  court,  WARREN,  J.,  over 
ruled  the  objection. 

The  defendants  then  moved  for  judgment  on  the  verdict, 
because  the  finding  of  the  jury  was  upon  an  immaterial 
issue  and  insufficient,  and  no  damages  were  assessed  for 
plaintiff.  The  defendants  also  moved  to  tax  the  costs  of  the 
action  against  plaintiff,  because  he  had  not  recovered  any 
damages.  The  court,  WARREN,  J.,  overruled  both  motions, 
and  defendants  excepted. 

WORD  &  SPRATT,  for  appellants. 

This  is  an  action  of  trespass.  The  respondent  should 
prove,  and  the  jury  should  find,  that  the  property  was  in 
the  possession  of  respondent  at  the  time  of  the  alleged 
injury  —  rightfully  as  against  appellants — and  that  the 
injury  was  committed  by  appellants  by  force.  2  Greenl. 
Ev.,  §  613;  3  Phil.  Ev.  497-501;  Brennan  v.  Gaston,  17 
Cal.  373  ;  Pico  v.  Colimas,  32  id.  580. 

The  verdict  does  not  reach  any  material  matters  put  in 
issue  in  this  case.  It  is  no  verdict.  The  finding  is  upon  an 
immaterial  issue,  and  should  be  disregarded.  Benedict  v. 
Bray,  2  Cal.  251 ;  Truebody  v.  Jacobson,  id.  285  ;  Woodson 
v.  McVune,  17  id.  304  ;  12  Wend.  475. 

The  court  below  went  beyond  the  verdict,  and  corrected 
it,  in  its  judgment,  by  granting  a  perpetual  injunction,  and 
finding  that  respondent  had  a  prior  right  to  the  water  in 
controversy.  The  finding  of  the  jury  is  a  proposition  of 
law,  to  be  arrived  at  from  the  existence  of  certain  facts. 
The  jury  found  none  of  these  facts,  and  there  was  nothing 
to  authorize  the  judgment  rendered.  Itoss  v.  Austill,  2 
Cal.  183. 

No  special  issues  were  submitted  to  the  jury,  and  no  gen- 
eral verdict  was  rendered.  The  right  of  trial  by  jury  waa 
denied  appellants.  The  court  usurped  their  province,  and 
rendered  judgment  without  a  verdict. 


214  HARRIS  v.  SHONTZ.  [Aug.  T.: 

The  court  below  should  have  rendered  judgment  in  favor 
of  appellants  for  costs.  Civ.  Prac.  Act,  §§  470,  473. 

The  decisions  cited  by  respondent  regarding  the  admis- 
sion, in  the  answer,  of  the  material  allegations  of  the  com- 
plaint, do  not  apply  to  this  case.  The  court  below  did  not 
so  think,  and  it  ordered  a  jury  to  try  the  issues.  The 
answer  contains  sufficient  denials.  A  verified  answer,  which 
contains  a  distinct  denial  of  any  fact  material  to  plaintiff's 
recovery,  cannot  be  treated  as  a  nullity.  Appellants  have 
sufficiently  denied  all  material  allegations  that  were  prop- 
erly pleaded  by  respondent.  Ghirardelli  v.  McDermott, 
22  Cal.  539 ;  Hill  v.  Smitli,  27  id.  476 ;  Siter  v.  Jewett,  33 
id.  92. 

Respondent  should  have  tested  the  sufficiency  of  the 
denials  by  a  motion  for  judgment  upon  the  pleadings,  or  to 
strike  out  the  answer.  Gay  v.  Winter,  34  Cal.  153.  Re- 
spondent submitted  no  such  motion,  but  filed  a  replication. 

The  case  was  submitted  to  a  jury,  who  rendered  a  verdict 
upon  an  immaterial  issue,  if  it  can  be  called  an  issue. 

H.  IN".  BLAKE,  for  respondent. 

Appellants'  answer  consists  of  conjunctive  denials.  They 
are  insufficient,  and  admit  the  material  allegations  of  the 
respondent's  complaint.  Woodworth  v.  Knowlton,  22  Cal. 
168  ;  Fish  v.  Redington,  31  id.  194,  and  cases  cited  ;  Fitch 
v.  Bunch,,  30  id.  211. 

The  only  points  in  controversy  appear  to  be  the  capacity 
of  respondent's  ditch,  and  the  right  to  the  water  in  Wash- 
ington creek.  Upon  these  issues  the  jury  rendered  a  ver- 
dict in  favor  of  respondent.  The  court  must  ascertain  the 
intention  of  the  jury  from  the  verdict,  and  carry  the  same 
into  effect  by  its  judgment  thereon  and  the  admissions  in 
the  pleadings.  Truebody  v.  Jacobson,  2  Cal.  284 ;  McLaugTi- 
Hn  v.  Kelly,  22  id.  222  ;  Brunett  v.  WMtesides,  15  id.  37 ; 
Treat  v.  Laforge.  id.  41. 

The  court  below  rendered  a  proper  judgment  in  this  case 
by  making  the  temporary  injunction  perpetual.  McLaugh- 
lin  v.  Kelly,  22  Cal.  222  ;'  Button  v.  Reed.  25  id.  491 ;  Ameri- 
can, Co.  v.  Bradford,  27  id.  364. 


1870.]  HARRIS  ».  SHONTZ.  21ft 

A  complaint  for  an  injunction  is  good,  without  any  prayer 
for  damages.  It  is  an  equitable  remedy  to  prevent  future 
injuries.  Damages  are  given  to  compensate  a  party  for 
past  injuries.  Civ.  Prac.  Act,  §  112  ;  Toulumne  Water  Co. 
v.  Chapman,  8  Cal.  392  ;  Sherman  v.  Clark,  4  Nev.  138. 

This  was  a  special  proceeding  in  the  nature  of  an  action 
and  respondent  was  entitled  to  costs.     Civ.  Prac.  Act,  §g 
470,  472  ;  Marius  v.  Bicknell,  10  Cal.  222. 

SYMES,  J.  This  was  an  action  for  damages  for  the  diver- 
sion of  water,  and  asking  fora  decree  of  title  and  perpetual 
injunction.  Plaintiff  alleged  that  he  was  the  owner  of  cer- 
tain mining  ground  and  a  water  ditch,  which  conveyed  two 
hundred  inches  of  water  to  the  same  ;  that  he  had  a  prior 
right  to  the  water  ;  that  defendants  wrongfully  diverted  the 
said  water  to  plaintiff's  damage  $500;  that  defendants 
threatened  to  continue  the  diversion,  which  would  cause 
great  and  irreparable  injury  to  plaintiff,  and  were  unable  to 
respond  in  damages. 

Defendants  answered  and  denied  the  ownership  of  the 
ditch,  and  prior  rights  to  the  use  of  the  water  ;  denied  that 
plaintiff  had  sustained  damage  in  any  sum  :  denied  that 
diversion  would  cause  irreparable  injury.  Further  an- 
swered and  set  up  title  in  the  water  by  right  of  appropria- 
tion arid  agreement  of  defendants. 

The  case  was  tried  at  the  November  term,  1869,  and  the 
following  verdict  found  for  the  plaintiff,  viz.:  "We,  the 
jurors,  do  find  the  plaintiff  entitled  to  one  hundred  and 
fifty  inches  of  the  water  in  Washington  gulch."  The  court 
on  this  verdict  rendered  judgment  for  costs  against  the  de- 
fendants, and  decreed  the  title  to  one  hundred  and  fifty 
inches  of  water  in  the  plaintiff,  and  perpetually  enjoined  th^ 
defendants  from  interfering  therewith. 

The  defendants  exempted  to  the  entry  of  judgment  and 
decree  on  the  verdict,  moved  for  a  new  trial,  which  motion 
was  overruled,  and  appealed  to  this  court. 

Does  the  verdict  or  finding  of  the  jury  in  this  case  sup- 
port the  judgment  and  decree  ?  The  jury  find  for  the  plain- 
tiff upon  the  material  issue  of  title  to  the  water.  There  is 


216 '  HARRIS  v.  SIIONTZ.  [Aug.  T., 

no  denial  that  defendants  did  divert,  continue  to  divert,  and 
threatened  to  continue  to  divert  the  water.  The  paragraph 
of  the  answer  purporting  to  deny  the  diversion  is  as  fol- 
lows, to  wit :  "Denies  that  the  said  defendants  and  their 
servants  and  employees  did  on  said  1st  day  of  April,  1869, 
and  ever  since  said  date,  have  continued,  wrongfully  and 
illegally,  to  divert  the  water  of  said  Washington  creek  by 
means  of  a  certain  ditch  owned  and  possessed  by  defendants." 
Denying  that  they  diverted  it  wrongfully  and  illegally  is 
pregnant  with  the  admission  that  they  did  in  fact  commit 
the  act  of  diversion.  The  allegations  of  irreparable  injury 
and  insolvency  were  not  necessary  to  be  found  by  the  jury. 
The  plaintiff  set  up  title  to  water,  and  asks  that  title  be  de- 
creed to  him  ;  and  alleged  that  defendants  diverted  and 
threatened  to  divert  the  same.  The  trespass  complained  of, 
the  diversion  of  the  water,  the  continuing  and  threatened 
continuance  thereof,  not  being  denied,  the  admissions  in  the 
pleading  and  the  finding  of  the  jury  will  support  the  judg- 
ment and  decree.  The  title  to  the  water  being  found  in  the 
plaintiff,  and  the  defendants'  admission  that  they  threatened 
to  continue  to  divert  it,  entitled  the  plaintiff  to  a  decree  of 
title  and  injunction. 

The  defendants  objected  to  the  judgment  for  costs  being 
entered  because  the  plaintiff  did  not  recover  $50  or  more 
damages.  The  gist  of  the  action  appears  to  be  the  title,  or 
prior  right  to  the  use  of  the  water  ;  the  diversion  is  admitted 
by  defendants,  but  they  deny  the  title  to  the  water ;  upon 
this  issue  alone  the  cause  was  tried,  and  the  plaintiff's  re- 
covery of  the  water  entitles  him  to  costs. 

Order  of  the  court  overruling  motion  for  new  trial  is 

affirmed. 

Exceptions  overruled. 


1870.]  LINCOLN  a.  RODGEES.  317 


LINCOLN  et  al.,  appellants,  «.  RODGERS  et  al.,  respondents 

PRACTICE — new  trial  — not  granted  if  verdict  has  any  support.  A  new  trial  will 
iiot  be  granted  if  there  is  some  testimony  to  support  the  verdict,  although 
there  is  a  preponderance  of  evidence  against  it. 

MINING  CLAIMS  —  damages  by  custom — free  tailings.  The  first  locators  of  min- 
ing ground  have  no  right,  by  custom  or  otherwise,  to  allow  tailings  to  run 
free  in  the  gulch,  and  render  valueless  the  mining  claims  of  subsequent 
locators  below  them. 

MINING  CLAIMS — no  remedy  for  necessary  injuries  in  working  by  first  locators. 
The  first  locators  of  mining  ground  can  work  it  with  reasonable  care  and 
diligence,  and  the  necessary  injuries  resulting  to  subsequent  locators  would 
be  damtmm  absque  injuria. 

MINING  CLAIMS  —  boundaries  of  ground  for  tailings  —  custom — free  tailings. 
The  boundaries  of  ground  for  the  deposit  of  tailings  must  be  distinctly 
defined  by  persons  locating  it,  so  that  subsequent  locators  may  know  what 
ground  is  vacant.  The  custom  of  free  tailings  conflicts  with  this  rule, 
and  the  defining  of  such  boundaries  would  be  useless. 

Appeal  from  the  Second  District^  Deer  Lodge  County. 

THIS  action  was  commenced  by  Lincoln  and  another  in 
the  district  court,  in  April,  1869,  to  recover  $3,000  damages, 
and  enjoin  defendants  from  washing  down  on  plaintiffs' 
mining  claims,  tailings,  gravel  and  sand.  The  cause  was 
tried  at  the  September  term,  1869,  by  a  jury  that  rendered 
a  general  verdict  for  defendants,  and,  also,  ten  special 
findings. 

The  court,  KNOWLES,  J.,  refused  the  motion  for  a  new 
trial,  and  plaintiffs  appealed. 

The  facts  are  stated  in  the  opinion. 

CLAGETT  &  DIXON,  for  appellants. 

The  evidence  was  insufficient  to  justify  the  verdict  and 
special  findings.  The  deposit  of  tailings,  by  respondents, 
the  injury  to  appellants'  ground,  and  the  amount  of  dam- 
ages sustained  by  appellants,  were  proved  and  not  disputed. 
The  testimony  did  not  show  any  custom  to  allow  tailings  to 
run  free  down  the  gulch.  Civil  Prac.  Act,  §  193  ;  Minturn 
v.  .Burr, 20  Cal.  48  ;  LyU  v.  RoU'ms^  id.  440;  Carpenter 
v.  Gardiner,  29  id.  100  ;  1  Gra,  &  ^Y.  on  New  Trials,  367  ; 
3  id.  1204,  1207:  Esmond  v.  Cheir,  15  id.  137. 
VOL.  L  — 28. 


LINCOLN  «.  RODGERS.  [Aug.  T., 

The  court  erred  in  refusing  to  give  instructions  asked  for 
by  appellants. 

The  respondents  having  assisted  in  and  consented  to  the 
organization  of  Lincoln  district,  and  the  enactment  of  its 
laws,  and  having  availed  themselves  of  such  laws  and 
located  their  ground  anew  under  these  laws,  which  gave 
them  more  ground  than  they  could  hold  before,  thereby 
accepted  and  were  bound  by  these  laws.  The  respondents 
were  confined,  by  their  new  location,  to  three  hundred  feet 
of  ground  for  dump,  if  they  chose  to  locate  it.  Respond- 
ents could  not,  while  locating  under  and  claiming  the  benefit 
of  these  new  laws,  claim  other  and  different  rights  under  a 
former  location  and  previous  laws. 

Appellants  hold  that  no  mining  law  or  custom  can  author- 
ize a  trespass  on  the  property  of  another,  especially  where 
such  trespass  might  lead  to  the  entire  destruction  of  the 
property.  Such  a  custom  would  be  in  conflict  with  the 
laws  of  the  Territory,  and  void.  Esmond  v.  Chew,  15 
Cal.  137. 

WOOLFOLK  &  TOOLE,  and  MAYHEW  &  McMuRTRY,  for 

respondents. 

The  evidence  was  conflicting,  and  the  jury  determined  its 
weight,  Kile  v.  Tubbs,  32  Cal.  333. 

The  respondents  were  using  the  ground  as  a  dump  when 
appellants  located  it.  They  so  located,  with  full  notice  of 
respondents'  rights.  It  was  the  custom  of  the  miners  to  let 
such  tailings,  as  the  water  of  the  gulch  would  carry,  run  free 
down  the  gulch.  This  custom  was  in  force  when  appellants 
located  their  ground.  The  position  that  respondents  were 
only  entitled  to  three  hundred  feet  for  dump,  is  immaterial, 
as  the  custom  was  as  above  stated.  Respondents  were  run 
ning  their  tailings  upon  and  through  appellants'  ground 
when  appellants  pre-empted  it.  Such  use  was  necessary 
and  beneficial  to  respondents,  who  should  be  protected  ir 
the  advantage  of  their  prior  location.  Logan  v.  Driscoll. 
19  Cal.  623. 

The  instructions  of  the  court  were  correct.     The  jury  did 


1870.1  LINCOLN  c.  ROUGKKS.  21li 

not  find  a  single  issue  for  appellants;,  and  it  devolved  on 
them  to  make  out  their  case. 

Under  our  statute,  the  miners  of  a  district  make  such 
laws  as  they  deem  expedient,  and  such  laws  have  full  force, 
it'  not  in  conflict  with  the  law  of  the  Territory.  Acts  1865, 
1 69,  §  634. 

The  appellants  were  not  entitled  to  any  damages,  and 
>howed  no  right  to  recover  them.  The  respondents'  mining 
ground  would  be  rendered  useless,  without  permitting  their 
tailings  to  run  in  accordance  with  the  custom  of  the  district. 

3  YMES,  J.  This  was  an  action  brought  by  plaintiffs,  alleg- 
ing that  they  were  and  had  been  for  two  years  the  owners 
of  certain  mining  ground  in  Lincoln  district,  Carpenter's 
gulch,  Deer  Lodge  county,  Montana,  to  wit:  Six  claims 
next  below  discovery  ;  that  said  mining  ground  had  been 
located  for  the  purpose  of  mining  the  same  by  bed  rock 
Humes  ;  that  they  had  been  continually  working  and  mining 
the  same  when  practicable  since  location,  and  had  con- 
structed a  bed  rock  flume  and  a  reservoir  for  harboring  the 
water.  Further,  that  defendants  have  been  for  more  than  a 
year  mining  on  ground  in  said  gulch,  six  hundred  or  eight 
hundred  feet  above  the  plaintiffs,  and  have  been  using  the 
water  of  said  gulch  through  a  flume  ;  that  in  1868  and  1869, 
while  plaintiffs  were  in  possession  of  their  ground  and 
flume,  and  waters  of  gulch,  defendants  wrongfully  and  un- 
lawfully washed  and  run  large  quantities  of  rock,  tailings, 
gravel  and  sediment  on  to  the  plaintiffs'  ground  and  in  and 
upon  their  reservoir,  and  covered  up  and  obstructed  their 
reservoir :  that  plaintiffs  had  been  prevented  from  mining 
Their  ground  and  had  sustained  damage  to  the  amount  of 
sH(H>.  and  demanded  judgment  and  an  injunction. 

Defendants  answered,  denying  the  allegations  of  the 
plaintiffs'  complaint,  and  alleged  that  they  had  located  their 
mining  ground  above  prior  to  plaintiffs'  location,  and  that 
plaintiffs  took  their  mining  ground  subject  to  defendants' 
prior  right  to  let  their  tailings,  etc.,  run  down  the  natural 
channel  of  the  o-iiloh.  And  alleged  that  there  was  a  cus- 


220  LINCOLN  v.  RODGERS.  [Aug.  T., 

torn  in  the  district  where  said  mining  ground  was  situate, 
that  gave  those  above  in  the  gulch  the  right  to  let  their  tail 
ings  run  down  the  natural  channel  of  the  gulch  without 
cribbing  the  same  ;  and  that  plaintiffs  located  their  mining 
ground  subject  to  this  mining  custom. 

The  cause  was  tried  at  the  September  term  of  the  Deer 
Lodge  county  district  court,  judgment  rendered  for  defend- 
ants, motion  for  new  trial  overruled,  and  case  appealed 
from  order  overruling  motion  for  new  trial.  The  facts  of 
the  case  quite  fully  appear  in  statement  on  motion  for  new 
trial  and  special  findings  submitted  to  the  jury. 

We  are  asked  to  reverse  the  judgment  and  grant  a  new 
trial,  first,  because  the  verdict  is  contrary  to  law  and  the 
evidence  ;  and  second,  because  the  court  erred  in  giving  and 
refusing  certain  instructions. 

The  jury,  in  addition  to  their  general  verdict  for  defend- 
ants, found,  in  their  special  verdict,  that  defendants  located 
and  owned  their  mining  ground  above  in  the  gulch  prior  to 
plaintiffs'  location  below  and  adjoining ;  that  defendants 
owned  three  hundred  feet  of  the  ground  next  below  the  upper 
line  of  number  one,  claimed  by  plaintiffs,  for  the  purpose  of 
depositing  their  tailings  thereon,  and  were  actually  using  the 
same  for  such  purpose  when  plaintiffs  located  it  with  their 
other  ground  below  ;  that  it  was  the  custom  and  usage  of 
miners  in  the  mining  district  where  plaintiffs'  mining  ground 
was  situate,  to  let  so  much  of  the  tailings  and  sediment,  as  the 
natural  waters  of  the  gulch  would  carry,  flow  free,  at  the 
time  plaintiffs  located  their  mining  ground  ;  and  that  the 
alleged  damage  accrued  by  reason  of  defendants  letting 
their  tailings  and  sediment  so  to  run  free. 

There  were  other  special  findings  immaterial  to  the  main 
issues. 

The  court  below  states,  in  reasons  for  overruling  motion 
for  new  trial,  that  it  thinks  the  weight  of  evidence  was  con- 
trary to  some  of  the  special  findings  ;  but  that  there  was 
some  evidence  on  both  sides,  as  appears  in  the  statement, 
and  therefore  the  verdict  cannot  be  set  aside.  We  think 
this  the  correct  doctrine  ;  that  although  the  preponderance 


1870.]  LINCOLN  v.  RODGEBS.  221 

of  evidence  may  have  been  in  favor  of  the  plaintiffs  on  the 
two  main  issues,  viz.  :  Whether  defendants  owned  three 
hundred  feet  below  the  upper  line  of  claim  number  one,  for, 
in  miner's  parlance,  dump  ;  and  whether  there  was  a  cus- 
tom to  let  tailings  run  free  ;  still,  as  there  was  some  consid- 
erable evidence  on  both  sides,  the  judgment  cannot  be  re- 
versed for  that  reason. 

This  brings  us  to  the  consideration  and  necessary  decis- 
ion of  a  question,  which,  after  twenty  years  of  mining  liti- 
gation in  California,  has  never  been  fairly  met  and  decided, 
viz.  :  how  far  a  mining  custom  to  let  tailings  run  free  down 
a  gulch  without  any  let  or  hindrance  (such  as  was  found  by 
the  jury  to  exist  in  this  case),  can  interfere  with  and  destroy 
the  mining  operations  and  ground  of  persons  locating  for 
mining  purposes  in  the  same  gulch  below  and  after  such 
custom  or  regulation  has  been  established. 

It  plainly  appears  that,  if  defendants'  tailings  are  allowed 
to  run  free,  in  accordance  with  said  custom,  it  will  entirely 
destroy  plaintiff's  mining  ground,  and  render  his  mining 
operations  valueless.  Will  the  law  allow  such  a  custom  to 
take  away  and  destroy  the  property  rights  of  plaintiffs, 
acquired  as  aforesaid,  and  will  defendants'  prior  location 
be  a  good  defense  under  the  maxim  qui  prior  est  in  tempore 
potior  est  injure? 

The  case  of  Esmond  et  al.  v.  CJiew  et  al.,  15  Cal.  137,  is 
a  case  in  point  on  question  of  first  in  time,  first  in  right,  and 
establishes  the  doctrine  that  a  person  locating  ground  on 
the  bed  of  a  stream,  or  in  a  gulch,  prior  to  one  locating 
ground  below,  does  not  acquire  the  right,  by  such  prior 
location,  to  go  on  to  and  construct  a  tail  race  on  subsequently 
located  ground  below,  and  cannot,  as  matter  of  strict  legal 
right,  therefore,  allow  tailings  and  sediment  to  run  free,  to 
the  destruction  of  the  mining  property  of  junior  locators 
below.  Where  the  useful  working  of  the  claim  above,  with 
reasonable  care  and  diligence,  will  necessarily  work  some 
injury  to  the  claim  below,  it  would  be  damnum  absque 
injuria ;  but  this  would  be  a  question  for  the  jury  under 
the  instructions  of  the  court,  and  cannot  avail  defendants 


222  LINCOLN  v.  RODGEKS.  [Aug.  T., 

in  this  case,  as  it  appears  that  what  they  justify  would 
entirely  destroy  the  mining  property  of  plaintiffs,  and 
make  it  impossible  for  them  to  work  their  claims.  But  this 
case  does  not  reach  the  question,  how  far  a  local  mining 
custom  could  authorize  a  destruction  of  mining  operations 
below.  But  the  court  say  that,  if  the  damage  was  justified 
by  a  local  custom  or  regulation,  its  existence  should  have 
been  alleged  and  proved ;  perhaps  intimating  that  such  a 
custom  would  justify  such  damage.  The  other  case  cited 
(Logan  v.  Dri'scott},  where  the  plaintiff  owned  mining  ground 
below,  and  defendants  located  above,  after  plaintiff,  it  was 
held  that  the  maxim  first  in  time,  first  in  right,  applied  to 
this  case,  and  defendant  was  enjoined  from  allowing  tail- 
ings to  run  down  to  the  damage  of  plaintiff,  defendant 
being  junior  locator. 

The  court  below  instructed  the  jury  in  accordance  witli 
the  above  cited  decisions,  so  far  as  applicable ;  but  also 
gave  instruction  to  the  effect  that,  if  the  defendants  proved 
a  custom  allowing  tailings  to  run  free,  that  would  be  a  good 
defense  or  justification  for  any  damage  resulting  to  plaintiffs' 
mining  operations  below  ;  and  the  case  was  tried,  and  judg- 
ment rendered  on  this  theory.  We  think  this  theory  cannot 
be  maintained  in  accordance  with  strict  legal  principle.  To 
support  this  doctrine  of  free  tailings  by  custom,  would  be 
to  allow  a  few  miners  or  flume  companies  to  go  into  the 
head  of  a  mining  gulch  and  prevent,  perhaps,  miles  of 
valuable  mining  ground  below  them  from  being  taken  up 
and  developed  :  because  no  one  could  tell,  if  the}7  located 
below,  how  soon  their  ground  would  be  entirely  covered  up 
and  destroyed,  under  this  custom  of  free  tailings.  Such  a 
mining  custom  would  be  in  contravention  of  the  leading 
principle  that  customs  must  not  be  inconsistent  with  the 
full  and  rapid  development  of  all  the  mining  resources  of 
the  country  :  for  the  miners  of  a  district  might  as  well  take 
possession  of  a  large  gulch,  and  establish  a  regulation  that 
each  claim  should  be  five  thousand  feet  up  and  down  the 
gulch,  in  size,  as  to  put  a  few  flumes  in  at  the  head  of  a 
gulch,  and.  under  thtj  contended  for  custom  of  free  tailings, 


1870.]  LINCOLN  v.  KODGERS.  223 

uot  allow  them  to  be  cribbed,  and  thereby  prevent  rich 
mining  ground,  for  miles  below,  from  ever  being  worked 
or  developed. 

We  are  not,  by  tliis  decision,  restricting  any  of  those 
mining  rights  which  may  be  acquired  by  prior  location, 
o.'  as  appurtenant  to  mining  ground,  nor  contravening  the 
doctrine,  that  the  miners  may  establish  such  customs  and 
regulations,  not  inconsistent  with  the  laws  of  congress  and 
the  Territory,  as  to  them  may  seem  just  and  necessary  ;  but 
only  that  the  doctrine  of  free  tailings  cannot  be,  abstractly, 
and  without  restriction,  maintained.  Where  persons  locate 
ground  for  the  purpose  of  constructing  a  flume,  they  can 
locate  any  number  of  feet,  not  in  violation  of  the  mining 
regulations  of  the  district,  and  if  there  are  no  regulations 
not  exceeding  a  reasonable  amount  for  the  deposit  of  tail- 
ings, or  dump,  but  the  boundaries  of  the  same  must  be 
marked  in  accordance  with  the  regulations  of  the  district ; 
or,  if  there  are  more,  by  fixing  the  boundaries  by  such 
physical  marks  as  will  advertise  the  precise  ground  claimed 
for  mining  and  dump  ;  so  that  those  wishing  to  locate  there- 
after may  know  what  is  vacant.  English  v.  Johnson,  17 
Cal.  117.  And  there  are  other  appurtenant  rights  acquired 
and  necessarily  attaching  to  the  claim,  delined  by  the  min- 
ing law,  and  the  peculiar  circumstances  surrounding  such 
case.  To  allow  the  custom  of  free  tailings  to  govern  with- 
out restriction,  would  be  in  opposition  to  this  principle,  that 
parties  locating  are  bound  to  mark  the  boundaries  of  their 
claims,  which  shall  be  notice  of  the  extent  of  the  mining 
ground  and  rights  acquired  to  subsequent  locators,  for  all 
the  first  locators  would  have  to  do,  would  be  to  pass  the 
mining  custom  of  "free  tailings;"'  then  defining  bound- 
aries by  physical  marks  would  be  useless,  because  if  any 
one  located  below,  they  could  run  their  tailings  on  to,  and 
render  their  ground  valueless,  and  this  custom  unrestricted 
would  prevent  junior  locators  from  cribbing  or  stopping  the 
tailings  from  above  in  any  way. 

There  was  evidence  in  the  case  to  show  that  if  the  tailings 
were  not  allowed  to  run  free,  the  defendant's  mining  opera- 


i£24  NOLAN  v.  LOVELOCK.  [Aug.  T., 

tions  would  be  rendered  useless,  and  would  be  destroyed ; 
but  the  jury  found  the  defendants  owned  three  hundred  feet 
of  the  ground  claimed  by  plaintiff's,  below  their  own  mining 
ground,  for  deposit  of  tailings.  The  evidence  and  peculiar 
circumstances  of  the  case  might  justify  defendants  in  the 
reasonable  prosecution  of  their  mining  operations,  under  prior 
location,  in  working  some  necessary  injury  to  plaintiffs, 
which  would  be  damnum  absque  injuria.  But  a  mining 
custom  which  would  allow  the  total  destruction  of  a  junior 
locator's  mining  operations,  in  a  gulch  below  prior  locators, 
on  ground  which  was  vacant,  cannot  be  maintained  under 
any  statute  or  common  mining  law  with  which  we  are  ac- 
quainted. Therefore,  the  court  erred  in  instructing  the  jury 
that  the  defendants  could  justify  the  destruction  of  plaintiffs' 
mining  operations,  by  proving  a  custom  or  regulation  to  let 
tailings  run  free. 

Judgment  is  reversed  and  cause  remanded  for  a  new  trial. 

Exceptions  sustained. 


NOLAN,  respondent,  v.  LOVELOCK  et  al.,  appellants. 

MINING  PARTNERSHIP  —  authority  of  partners  in  mining  to  hire  laborers.  The 
law  presumes  that  every  member  of  a  mining  firm  has  authority  to  hire 
laborers  and  make  the  firm  liable  for  their  wages,  if  they  are  necessarily 
employed  in  working  upon  the  joint  property,  and  no  evidence  of  such 
authority  is  required. 

MINING  PARTNERSHIP  —  liability  for  wages  of  laborers,  with  notice.  Laborers 
that  are  hired  by  one  member  of  a  mining  firm  cannot  recover  their  wages 
from  the  firm,  if  they  had  notice  of  an  express  agreement  that  such  a  con- 
tract must  be  ratified  by  all  the  members. 

PLEADING  —  complaint  on  mechanics'  lien  must  state,  a  contract.  The  complaint 
of  a  party,  who  claims  to  have  a  lien  upon  mining  ground,  for  labor  per- 
formed, must  state  facts  that  constitute  a  contract,  but  it  is  not  necessary 
to  name  the  contract. 

MECHANICS'  LIEN  —  not  lost  bj/  excessive  claim.  A  laborer  does  not  lose  his  lien 
for  the  amount  actually  due,  by  claiming  a  lieu  for  a  sum  in  excess  of  that 
to  which  he  is  entitled,  unless  there  is  fraud  connected  with  the  transaction. 


1870.]  NOLAN  v.  LOVELOCK.  225 

Appeal  from  the  Third  District,  Meagher  County. 

IN  April,  1870,  Nolan  commenced  this  action  against 
Lovelock,  J.  R.  Weston  and  J.  A.  Harding,  in  the  district 
court  in  Meagher  county.  The  defendants  demurred  to  the 
complaint,  because  there  was  a  defect  and  misjoinder  of 
parties  defendant ;  the  complaint  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action,  and  the  complaint  was 
ambiguous.  The  demurrer  was  overruled  by  the  court, 
SYMES,  J.,  and  defendants  excepted. 

The  cause  was  tried  in  May,  1870,  by  the  court,  SYMES,  J. 

It  appeared  from  the  evidence  that  the  defendants  owned 
mining  ground  in  Confederate  gulch,  Meagher  county,  in 
the  following  undivided  proportions:  Lovelock,  ^V;  Wes- 
ton, -j3^  ;  and  Harding,  TW  Lovelock  hired  Nolan  to  run 
a  whim  upon  the  mining  ground,  and  agreed  to  pay  him  for 
his  services  and  the  use  of  his  mule,  §7.50  per  day.  Wes- 
ton sometimes  paid  him  for  his  services,  and  gave  him  on 
January  6,  1870,  the  following  instrument:  "Due  from 
Lovelock,  Weston  &  Co.  to  date,  to  John  Nolan,  $444.50." 
The  defendant  also  owed  other  sums  to  Nolan  on  different 
accounts.  Neither  Harding  nor  AVatson  ever  spoke  to  Nolan 
about  his  contract.  None  of  the  defendants  had  any  author- 
ity from  the  others  to  hire  laborers,  or  bind  them  by  his 
contracts,  and  each  defendant  was  to  pay  his  proportion  of 
the  expenses. 

The  plaintiff  iiled  his  account  in  the  county  recorder's 
office,  in  Meagher  county,  to  secure  a  lien  on  the  mining 
ground  for  his  services,  and  claimed  that  the  defendants 
owed  him  S544.90. 

The  court  rendered  judgment  for  plaintiff  for  $544.90,  and 
that  he  was  entitled  to  a  lien  on  the  mining  ground  to  secure 
the  payment  of  $445.90  thereof. 

The  court,  SYMKS,  J..  overruled  the  defendants'  motion 
for  a  new  trial,  and  defendants  appealed. 

CHUMASERO  &  CHADWICK,  for  appellants. 
The  demurrer  was  well  taken.     The  complaint  would  not 
support  an  action  for  the  enforcement  of  the  lien,  unless  it 
VOL.  I.  —  29. 


220  NOLAX  c.  LOVELOCK.  [Aug.  T., 

Contained  an  averment  that  the  labor  was  done  under  a  con- 
tract, and  the  lien  was  filed  for  personal  property,  and, 
therefore,  could  not  be  enforced.  Houck  on  Liens, 
§§  55-132. 

It  was  error  to  admit  evidence  of  a  contract,  when  there 
was  none  in  the  complaint. 

The  appellants,  according  to  the  evidence,  were  not  gov- 
erned in  the  management  of  the  premises  in  question  (being 
mining  ground)  by  the  law  governing  commercial  copart- 
nerships, but  were  tenants  in  common,  uniting  in  a  general 
system  of  management.  There  was  no  joint  indebtedness,  as 
found  by  the  court.  Rockwell  on  Span,  and  Mexican  Law, 
5,  574,  et  seq. ;  Skillman  v.  Lachman,  23  Cal.  199. 

The  evidence  showed  that  respondent  was  seeking  to 
enforce  a  lien  for  a  much  larger  amount  than  he  was  enti- 
tled to.  He,  therefore,  lost  his  right  to  a  lien  for  any  por- 
tion of  the  amount  claimed.  Houck  on  Liens,  §  210. 

S.  ORE  and  SHOBER  &  LOWRY,  for  respondent. 

The  complaint  is  sufficient,  under  the  laws  of  Montana, 
to  support  a  laborer' s  lien.  Acts  1865,  334  ;  Acts  1867,  80. 

The  evidence  of  the  contract  was  properly  admitted. 
Farron  v.  Sherwood,  17  N.  Y.  227. 

The  evidence  shows  that  appellants  were  mining  partners, 
and  liable  as  such  to  respondent  for  the  labor  he  performed 
on  the  mining  ground  owned  by  appellants  jointly,  and  the 
drain  to  said  ground.  Skillman  v.  Lachman,  23  Cal.  199  ; 
Duryea  v.  Burt,  28  id.  569  ;  Dougherty  v.  Creary,  30 
id.  290. 

The  parties  owning  a  mining  claim  as  tenants  in  common, 
and  engaged  in  working  it,  are  partners.  It  is  not  neces- 
sary that  there  should  be  an  express  stipulation  between 
the  partners  to  show  the  profits  and  losses,  as  that  is  an 
incident  to  the  prosecution  of  their  joint  business.  Sto.  on 
Part.,  §§  18-25-82 ;  Coll.  on  Part.,  §  18  ;  3  Kent's  Com.  24,  25. 

KNOWLES,  J,  This  is  an  action  to  foreclose  a  lien  upon 
certain  mining  ground  owned  by  appellants,  for  work  and 


1870.]  NOLAN  v.  LOVELOCK.  227 

labor  done  thereon.  The  respondent,  in  the  court  below, 
obtained  judgment  against  the  appellants  for  $554.90,  and 
a  decree  for  the  sale  of  this  mining  ground  —  upon  which  a 
portion  of  the  work  had  been  performed  —  to  satisfy  $445.90 
of  this  amount.  The  appellants,  in  the  court  below,  moved 
for  a  new  trial,  which  was  denied.  From  this  judgment 
they  appealed  to  this  court,  assigning  as  error  the  points 
which  will  now  be  considered. 

The  evidence  shows  that  the  appellants  owned  certain 
mining  ground  in  Confederate  gulch  as  tenants  in  common  ; 
that  they  worked  it  together,  and  that  the  gold  taken  there- 
from went  first  to  pay  the  expenses  of  working  it,  and  the 
residue,  if  any,  was  to  be  divided  among  them  in  propor- 
tion to  the  interest  of  each  in  the  mining  ground.  This 
made  them  mining  copartners.  Duryeav.  Burt  et  al.,  28 
Cal.  569. 

One  of  the  partners,  Lovelock,  employed  respondent  to 
work  on  the  mining  ground  in  mining.  He  performed  work 
that  amounted  to  $445.90,  for  which  he  was  not  paid.  The 
question  arises  whether  Lovelock  had  authority  to  bind  his 
copartners  in  contracting  a  debt  for  working  in  their  mine. 
One  partner  in  a  mining  copartnership  has  authority,  by 
implication  of  law,  to  bind  his  copartners  in  creating  a  debt 
for  the  purposes  of  working  their  mine,  if  it  appears  that 
such  work  was  useful  or  necessary  for  that  object.  Yale  on 
Mining  Claims  &  Water  Rights,  224,  and  cases  there  cited. 
There  is  no  doubt  but  that  the  labor  performed  by  respond- 
ent was  useful  in  working  their  mine,  and  that  appellants 
received  the  benefit  of  it.  Perhaps,  in  some  cases,  one 
partner  might  limit  his  liability  even  for  necessaries,  by 
giving  notice  to  the  person  performing  such  work,  in  due 
time,  that  he  would  not  be  liable  therefor.  Where,  however, 
a  firm  is  composed  of  more  than  two  persons,  if  a  majority 
agree  upon  any  undertaking  in  working  mining  ground,  it 
would  be  doubtful  whether  any  one  of  the  partners  could 
limit  his  liability  for  necessaries,  as  a  majority  of  the  firm, 
in  such  cases,  ought  to  control.  Dauglierty  v.  Creary,  30 
Pnl.  '?nn. 


228  NOLAN  v.  LOVELOCK.  [Aug.  T., 

In  this  case  there  were  three  copartners,  one  of  whom 
hired  respondent,  and  another  of  whom  settled  with  him 
and  gave  him  a  memoranda,  stating  how  much  the  firm  was 
indebted  to  him.  This  would  go  to  show  that,  at  least,  one 
had  contracted  with  respondent,  and  the  other  had  ratified 
it.  The  appellants  all  testified  that  neither  one  of  the  firm 
had  authority  to  bind  the  others,  and  also  considerable  con- 
cerning the  interest  of  each  in  the  mining  ground.  It 
might  be  that  some  of  this  evidence  was  introduced  to 
show  that  the  copartners  had  limited  their  liability,  but  I 
do  not  think  it  was  sufficient  to  warrant  the  court  in  finding 
any  such  notice.  I  am,  however,  inclined  to  think  that 
appellants  introduced  this  evidence  to  show  that  appellants 
were  tenants  in  common  of  the  mine,  and,  hence,  were 
mining  copartners,  under  the  impression  that  it  devolved 
upon  the  respondent  to  show  some  express  authority,  from 
each  copartner,  to  authorize  any  member  of  the  firm  to  bind 
the  rest.  The  rule,  however,  is  different.  It  devolves  upon 
the  firm  to  show  that  they  had  an  express  agreement  with 
each  other,  that  one  should  not  contract  for  what  was  useful 
or  necessary  without  the  express  consent  of  the  others,  and 
that  the  party  contracting  with  any  member  of  the  firm  had 
notice  of  this  agreement.  Without  this  the  law  gives 
authority  to  each  member  of  a  mining  copartnership  to 
bind  the  rest  for  what  is  useful  and  necessary  in  their 
undertaking.  No  such  agreement  as  this  was  proved  in  this 
case. 

There  is  nothing  in  the  point  insisted  upon  by  appellants' 
counsel,  that  the  complaint  does  not  state  facts  sufficient  to 
warrant  the  court  in  decreeing  respondent  a  lien  on  the 
mining  ground,  because  the  complaint  does  not  say  that  the 
respondent  labored  upon  this  mining  ground  under  an  ex- 
press or  an  implied  contract.  The  facts  set  forth  in  the  com- 
plaint show  that  the  respondent  performed  the  work  under 
an  implied  contract.  This  is  sufficient.  It  is  not  necessary 
for  a  party  to  state  the  name  of  the  contract  he  sues  under 
When  lie  states  the  facts  amounting  to  a  contract  the  law 
names  it. 


1870.]  NOLAN  v.  LOVELOCK.  229 

It  is  claimed  by  appellants  that,  because  respondent 
claimed  a  lien  for  a  larger  amount  than  he  was  entitled 
to,  he  lost  his  lien.  A  person  seeking  to  foreclose  such  a 
lien  appeals  to  the  equity  powers  vested  in  a  court.  No 
court  of  equity  ought,  in  the  absence  of  an  express  and 
positive  statute,  to  hold  that  a  person  claiming  a  lien  for 
more  than  he  was  entitled  lost  his  lien,  unless  it  clearly 
appeared  that  there  was  some  fraud  connected  therewith. 

The  respondent  is,  therefore,  entitled  to  a  judgment 
against  the  appellants  for  $445.90,  and  a  lien  for  that  sum 
on  the  mining  ground  upon  which  he  performed  the  work. 

The  court  below  gave  the  respondent  a  further  judgment 
for  $93,  for  work  done  on  a  bed-rock  flume.  In  the  state- 
ment on  the  motion  for  a  new  trial,  the  contract  under  which 
this  work  was  done  is  set  out  in  full.  It  is  not  a  joint  con- 
tract. These  appellants  and  other  parties  became  bound, 
individually,  each  in  a  certain  sum,  and  neither  one,  in  any 
way,  became  bound  for  the  other.  There  is  no  evidence 
that  this  copartnership  ever  became,  in  any  way,  bound  for 
this  debt.  If  any  of  the  individual  members  of  the  firm 
owe  this  amount,  or  portions  of  it,  the  respondent  must 
recover  it  of  them  individually.  He  cannot  recover  it  in 
this  action. 

The  judgment  of  the  court  is,  therefore,  modified.  Re- 
spondent should  have  judgment  for  $445.90,  and  a  decree 
for  the  sale  of  the  mining  ground  specified  in  the  notice  of 
lien. 

Judgment  modified. 


260  HIGGINS  «.  GEBMAINE.  [Aug.  T., 


HIGKHNS  et  al.,  appellants,  v.  GERMAINE,  respondent. 

PMADING  —  complaint  —  averment  of  express  promise.  Under  the  civil  prac- 
tice act,  a  complaint  should  not  set  forth  a  promise  which  is  implied  from 
the  facts  alleged,  but  an  express  promise  must  be  averred  and  proved. 

PLEADING*  —  answer  —  denial  of  implied  and  express  allegations.  The  denials 
of  the  answer  must  controvert  the  express  allegations  of  the  complaint,  and 
those  that  are  necessarily  implied  from  them. 

PLEADING  —  denial  of  indebtedness  —  issue.  In  an  action  on  an  account  for 
goods  sold  and  delivered,  a  denial  of  the  indebtedness  raises  no  material 
issue. 

Appeal  from  the  Third  District,  Lewis  and  Clarice 
County. 

HIGGINS  and  Hagadorn  commenced  this  action  in  Febru- 
ary, 1870,  to  recover  from  Germaine  $1,8^7.15,  on  an  account 
for  goods  sold  and  delivered.  The  defendant  demurred  to  the 
complaint,  on  the  grounds  that  the  complaint  did  not  aver  a 
promise  to  pay  the  amount  demanded,  or  that  this  amount 
was  the  reasonable  value  of  the  property  alleged  to  have 
been  sold,  or  that  this  amount  was  the  contract  price  there- 
for. The  demurrer  was  overruled,  and  the  defendant  filed 
the  following  answer,  which  is  referred  to  in  the  opinion  of 
the  court : 

• '  Now  comes  the  defendant,  G.  Jules  Germaine,  and  for 
answer  to  the  complaint  of  the  plaintiffs,  denies  that,  on  the 
2d  day  of  February,  1870,  or  at  any  other  time,  he  was  or 
that  he  now  is  indebted  to  said  plaintiffs  in  the  sum  of 
$1,847.15,  or  any  other  sum,  on  account  for  goods,  wares 
and  merchandise,  consisting  of  groceries,  provisions  and 
other  articles,  sold  and  delivered  to  this  defendant. 

Denies  plaintiffs'  rights  to  recover  in  this  action,  and  avers 
ihat  the  only  indebtedness  existing  or  owing  from  the  de- 
fendant to  said  plaintiffs,  accrued  on  an  account  for  gold 
dust,  the  amount  of  which  is  much  less  in  value  than  the 
claim  made  by  said  plaintiffs  in  their  complaint.  That  the 
goods,  wares  and  merchandise  claimed  by  said  plaintiffs  to 
have  been  sold  and  delivered  to  this  defendant,  by  the  terms 
of  such  sale  and  purchase,  were  to  have  been  paid  for  in 


HIGGINS  v.  GEKMAINK.  231 

gold  dust.  That  he  made  no  other  contract,  and  had  no 
other  transactions  with  said  plaintiffs,  by  which  he  became 
indebted  to  them  in  any  manner  whatever. 

Wherefore,  he  asks  judgment  for  his  costs  and  disburse- 
ments in  this  action." 

The  cause  was  tried  in  April,  1870,  by  the  court,  SYMES, 
.1 .  After  the  testimony  had  been  concluded,  the  defendant 
tiled  his  motion  for  a  nonsuit  upon  the  following  grounds : 

•'  1.  The  evidence  does  not  show  that  the  goods  sold  were 
;it  any  particular  price  agreed  on,  or  any  promise  to  pay 
any  particular  sum  or  price  therefor,  or  that  any  sum  of 
irold  dust  was  found  due. 

•  •  2.  The  evidence  does  not  show  that  defendant  promised 
to  pay  the  sum  claimed,  or  any  other  particular  sum. 

•  •  3.  The  evidence  shows  that  there  was  a  special  agreement 
<>r  contract  for  the  goods  claimed  to  be  sold,  which  was  pay- 
able in  gold  dust,  and  that  said  gold  dust  was,  by  the  terms 
of  said  contract,  to  be  valued  at  $>22£  per  ounce,  which  con- 
tract is  not  averred  in  the  complaint." 

The  court  sustained  the  motion,  and  plaintiffs  appealed. 

GHUMASERO  &  CHADWICK,  for  appellants. 

Respondent's  denial  of  the  indebtedness  claimed  to  be 
ihie  in  the  complaint  is  not  a  sufficient  denial  under  our 
statute.  Civil  Prac.  Act,  §  41 ;  Curtis  v.  Richards,  9  Gal. 
#J ;  Wells  v.  McPike,  21  id.  215. 

The  evidence  sustains  the  averments  of  the  complaint  of 
ihe  indebtedness  due  from  respondent  to  appellants,  and 
ro nclusively  disproves  the  averment  in  the  answer,  that  the 
u-oods  were  sold  and  delivered,  to  be  paid  for  in  gold  dust. 
All  that  is  required  in  a  complaint  is  a  statement  of  the 
facts  constituting  the  cause  of  action,  in  ordinary  and  con- 
cise language  ;  and,  if  money  be  demanded,  the  amount 
<hould  be  stated.  Civil  Prac.  Act,  §  39.  Nothing  should 
be  alleged  affirmatively  which  a  party  is  not  required  to 
prove.  Qreen  v.  Palmer,  15  Cal.  413. 

A  complaint  which  alleges  that  the  defendant  is  indebted 
i  n  a  specific  sum.  for  goods  sold  and  delivered  by  appel 


232  HIGGINS  v.  GERMAINE.  [Aug.  T., 

lants  to  respondent,  at  his  request,  and  that  such  sum  is 
due  from  him  to  them,  is  good.  Allen  v.  Patterson,  7 
N.  Y.  476. 

Even  if  there  had  been  a  contract  to  sell  at  a  stipulated 
price,  after  the  contract  had  been  completed  on  the  part  of 
the  appellants,  an  action  could  have  been  maintained  for 
goods  sold  and  delivered.  Farron  v.  Sherwood,  17  N. 
Y.  227. 

The  only  defense  interposed  in  this  case  in  the  court  below 
was,  that  the  goods  were  sold  under  a  special  contract,  and 
unless  that  defense  was  sustained  by  the  evidence,  the  non- 
suit was  erroneously  granted. 

It  was  not  necessary  to  make  a  motion  for  a  new  trial  in 
the  court  below.  Darst  v.  Rush,  14  Cal.  81 ;  Sullivan  v. 
Gary,  17  id.  80. 

WOOLFOLK  &  TOOLE,  for  respondent. 

The  evidence  must  support  the  allegations  of  the  com- 
plaint. This  action  should  have  been  for  so  much  gold 
dust,  at  an  agreed  price.  The  goods  were  sold  for  gold  dust 
upon  an  implied  contract  to  pay  their  reasonable  value,  and, 
after  the  reasonable  value  of  the  goods  was  ascertained,  to 
pay  a  certain  amount  in  lawful  money  for  the  gold  dust. 
Robertson  v.  Lynch,  18  Johns.  456. 

A  party  who  can  recover  upon  an  implied  promise  to 
pay  must  show  that  it  was  for  a  stipulated  price  or  sum 
certain.  Keteltas  v.  Myers,  19  N.  Y.  231 ;  Moffett  v.  Sackett, 
18  id.  522  ;  1  Estee  s  PI.  224,  et  seq. 

The  form  of  the  action  of  assumpsit  has  been  abolished, 
but  the  distinction  between  express  and  implied  assumpsit 
remains.  The  court  below  determines  upon  which  of  these 
he  supported  the  complaint,  and  permitted  the  parties  to 
go  to  trial.  Appellants  must  show  that  they  followed  the 
interpretation  given  by  the  court.  If  they  did  not  do  this, 
they  subjected  themselves  to  the  liabilities  of  a  nonsuit. 
Appellants  should  have  amended  their  pleadings,  or  ex- 
cepted  to  the  construction  of  the  pleadings  given  by  the 
court.  Did  the  court  below  abuse  its  discretion  ?  Appel 


1870.]  HIGGINS  x.  GERMAINE.  233 

lants  fail  to  show  any  injury  from  the  ruling  of  the  court. 
Todd  v.  Winants,  36  Cal.  129. 

The  evidence  does  not  support  the  complaint.  A  party 
cannot  avail  himself  of  facts  proven  upon  the  trial,  if  not 
issues  made  by  the  complaint,  field  v.  Mayor,  etc.,  2  Seld. 
179 ;  Brazill  v.  Isham,  2  Kern.  9  ;  N.  T.  Central  Ins.  Co. 
v.  National  P.  Ins.  Co.,  4  id.  85.  A  promise  to  pay  a  sum 
certain,  in  assumpsit,  must  be  averred  and  proved. 

The  evidence  in  the  record  cannot  be  entertained  by  this 
court,  because  no  motion  was  made  to  set  aside  the  nonsuit 
or  grant  a  new  trial.  This  is  an  appeal,  and  the  court  can- 
not review  the  evidence.  3  Estee's  PL  15,  499.  If  the  judg- 
ment of  nonsuit  is  against  law,  a  new  trial  might  have  been 
granted  if  applied  for.  Kower  v.  Gluck,  33  Cal.  401.  No 
such  motion  was  made  by  appellants.  If  the  ruling  of  the 
court,  after  both  parties  had  rested  their  case,  was  a  matter 
of  law,  the  proper  mode  was  by  saving  exceptions  by  a  bill 
attached  to  the  judgment  roll.  More  v.  Voile,  28  Cal.  170  ; 
Lucas  v.  San  Francisco,  id.  591 ;  Lyons  v.  Leimback,  29 
id.  139  ;  Clark  v.  Willett,  35  id.  534. 

The  court  cannot  order  judgment  in  favor  of  appellants, 
and  thereby  exercise  the  province  of  the  court  below,  and 
weigh  testimony.  The  judgment  can  only  be  reversed  upon 
questions  of  law.  People  v.  Empire  G.  &.  S.  M.  Co.,  33 
Cal.  173  ;  Wellterbee  v.  Carroll,  id.  553. 

The  evidence  set  out  is  uncertain,  and  will  not  be  reviewed 
by  the  court.  (1  o/.  or  $)  3  Estee's  PI.  181,  702. 

KXOWLES,  J.  In  this  action  the  court  below  sustained  a 
motion  made  by  the  defendant  for  a  nonsuit,  for  the  reason 
that  the  plaintiff's  proof  had  not  established  the  material 
allegations  of  the  complaint. 

This  ruling  is  assigned  as  error  by  the  appellants.  In 
determining  whether  the  ruling  of  the  court  below  was  cor- 
rect, it  is  necessary  to  observe  what  were  the  issues  presented 
in  the  pleadings,  for  these  determine  what  the  plaintiffs  were 
required  to  prove.  The  complaint  is  in  the  form  of  a  com- 
mon indebitatus  count,  for  goods  sold  and  delivered  in  a 
VOL.  I.—  30 


234  HIGGINS  v.  GERMAITSTE.  [Aug.  T., 

declaration  in  assumpsit  at  common  law,  save  that  no  allega- 
tion of  the  promise  to  pay  the  amount  claimed  due  is  set 
forth.  Under  our  code  system  of  pleadings,  a  promise, 
when  it  is  implied,  need  not  be  alleged,  for  it  is  not  proper 
under  this  system  to  set  forth  implications  of  law.  A  com- 
plaint, similar  to  the  one  in  this  action,  was  held,  in  Allen 
and  Carpenter  v.  Patterson,  7  1ST.  Y.  476,  to  state  facts 
sufficient  to  constitute  a  cause  of  action  ;  and,  according  to 
this  authority,  it  may  be  safely  said  that  this  complaint 
implies  clearly  that  a  contract  had  been  made  between 
plaintiffs  arid  defendant,  by  which  the  former  had  sold  and 
delivered  to  the  latter,  goods,  at  his  special  instance  and  re- 
quest, for  the  price  named  in  the  complaint,  which  the 
defendant  had  promised  to  pajr ;  that  the  time  when  the 
same  was  to  be  paid  had  expired,  and  that  it  was  now  due 
and  unpaid.  All  that  was  required  of  the  plaintiffs  was  to 
establish  these  facts.  If  they  are  not  controverted  by  the 
answer  they  are  admitted,  and  that  is  sufficient.  A  promise 
that  is  implied  from  the  facts  of  a  case  need  not  be  proved, 
while  an  express  promise  has  to  be  both  alleged  and  proved. 
The  promise  in  this  case,  as  in  that  of  Allen  and  Carpenter 
\.  Patterson,  above  referred  to,  is  an  implied  one.  Under 
<  >ur  Code,  as  well  as  under  the  common-law  system  of  plead- 
ings, the  denials  of  the  answer  should  not  only  controvert 
the  express  allegations  of  the  complaint,  but  also  those 
necessarily  implied  therefrom.  Yan  Santv.  Plead.  422,  423. 
It  was  necessary,  then,  that  the  defendant  should  contro- 
vert all  or  some  of  the  allegations  above  specified.  The  first 
denial  is  simply  a  denial  of  indebtedness.  This,  it  has  been 
frequently  held,  raises  no  material  issue  whatever.  The 
other  allegations  of  the  answer  do  not  directly  controvert 
any  of  the  allegations  of  the  complaint,  but  set  forth  that 
the  goods  were  purchased  for  gold  dust.  This,  of  course, 
inferentially  denies  that  the  goods  were  sold  for  so  much 
money.  It  is  very  difficult  to  class  such  an  answer  as  this. 
It  is  not  a  specific  denial  of  the  allegations  of  the  complaint, 
nor  does  it  confess  and  avoid  them,  for  if  it  is  true,  all  the 
allegations  of  the  complaint  are  not.  The  allegation  in 


1870.]  KING  v.  EDWARDS.  236 

relation  to  the  contract  being  for  gold  dust,  is  set  forth  in  the 
answer,  as  though  it  was  new  matter  constituting  a  defense. 
The  new  matter  constituting  a  defense  provided  for  in  the 
Code  is,  I  think,  the  setting  up  of  such  defenses  as  cover- 
ture, infancy,  payment,  failure  of  consideration,  recoup- 
ment and  such  classes  of  defenses,  amounting  to  a  full  or 
partial  defense  to  the  action.  This  defense  sought  to  be  set 
up  in  this  action  is  not  embraced  within  any  of  these  classes. 
It  is  one  that  undoubtedly  could  have  been  introduced  under 
n  specific  denial,  denying  that  the  defendant  ever  contracted 
to  pay  the  plaintiffs  the  sum  named  in  their  complaint,  or 
any  other  sum  of  money,  for  said  goods,  wares  and  mer- 
chandise. At  the  trial,  the  answer  was  treated  as  though  it 
was  such  a  denial  as  this.  Whether  a  court  should  consider 
such  an  answer  a  nullity,  without  any  objection  on  the  part 
of  the  plaintiff,  I  am  not  prepared  to  say.  Giving  it  all  the 
force  claimed  for  it,  the  only  issue  raised  by  it  is,  as  to 
whether  the  goods  were  sold  for  money  or  gold  dust.  All 
the  evidence  in  the  case  is  positive  upon  the  point  that  it 
was  for  money.  The  court  should,  then,  have  found  this 
tact,  which  would  have  decided  the  cause  for  the  plaintiffs. 
The  judgment  of  the  court  below  is  therefore  reversed, 
and  the  cause  remanded. 

Exceptions  sustained. 


KING  et  al.,  appellants,  v.  EDWARDS  et  al..  respondents. 

MINING  CUSTOMS  —  effect  on  common  law.  The  rules  and  customs  of  miners  hi 
a  particular  district  are  laws,  and  constitute  the  American  common  law  on 
mining  for  precious  metals. 

MINING  CUSTOMS  —  location  of  mining  around.  The  rules  and  customs,  which 
point  out  the  manner  of  locating  mining  ground,  are  conditions  precedent, 
which  must  be  substantially  complied  with. 

YtraiNG  CUSTOMS  —forfeiture  presumed  when  miners  fail  to  work  their  claim*. 
The  rules  and  customs  of  miners,  that  require  locators  to  do  a  certain 
amount  of  work  upon  their  claims,  are  conditions  subsequent ;  and  the  law 
presumes  that  such  locators  forfeit  their  rights  to  possess  and  mine  th* 
same  by  a  failure  to  comply  therewith,  although  no  penalty  is  specified  in 
such  rules  and  t-ustoms. 


236  KING  ».  EDWARDS.  [Aug.  T. 

MINING  CUSTOMS  —  re-location  of  forfeited  mining  claims.  Mining  claims,  which 
are  forfeited,  can  be  re-located  by  any  person  who  complies  with  the  rules 
and  customs  of  the  district  in  which  they  are  situated. 

MINING  CUSTOMS  —  construction  of  mining  rules  by  courts.  Courts  must  con- 
strue mining  rules  and  customs  and  require  the  owners  of  mining  ground 
to  develop  and  work  it,  if  consistent  with  law. 

MINING  CUSTOMS  —  rules  of  a  district  not  varied  by  those  of  another.  The  rules 
and  customs  of  the  miners  of  one  district  cannot  be  introduced  to  vary 
those  of  another  district. 

MINING  CUSTOMS  —  mining  laws  presumed  to  be  in  force.  It  is  presumed  that  the 
written  laws  of  a  mining  district  are  in  force,  and  any  custom  that  conflicts 
with  them  must  be  clearly  proved. 

MINING  DISTRICTS  CHANGED — vested  rights.  The  extent  of  a  mining  district 
may  be  changed  by  those  who  created  it,  if  vested  rights  are  not  thereby 
interfered  with. 

MINING  RULES  —  representation  of  mining  ground  by  labor  and  a  bed-rock  — 
flume.  All  mining  rules  and  customs  must  be  reasonable.  Those  which 
compel  persons  to  perform  labor  in  the  district  to  represent  their  mining 
ground,  which  cannot  be  profitably  worked  without  running  a  bed-rock 
flume  to  it  from  another  district,  are  unreasonable. 

Appeal  from  the  Third  District,  Meagher  County. 

IN  May,  1869,  King  and  Gillett  filed  their  complaint  against 
Edwards  and  ten  others,  including  John  Doe  and  Richard 
Roe,  in  the  district  court  in  Meagher  county.  The  cause 
was  tried  by  a  jury  in  November,  1869,  before  SYMES,  J., 
and  a  verdict  was  returned  for  defendants.  The  facts  are 
stated  in  the  opinion. 

WOOLFOLK  &  TOOLE,  for  appellants. 

There  was  no  evidence  that  appellants  had  abandoned  the 
ground  in  controversy.  The  laws  of  German  district,  even 
if  in  force,  make  no  provision  for  a  forfeiture,  but  were 
designed  to  make  representation  easy  instead  of  difficult. 
McGarity  v.  Byington,  12  Cal.  426 ;  Colman  v.  Clements. 
23  id.  248  ;  Bell  v.  Bed  Rock  T.  &  M.  Co.,  36  id.  217. 

No  witness  swore  that  the  laws  were  in  force.  The  record 
shows  that  there  had  been  a  dispute  for  three  years  past,  as 
to  what  laws  were  in  force.  Acts  Montana.  1865,  169,  §  634. 

Tile  questions  of  abandonment  and  forfeiture,  under  the 
laws  of  German  district,  were  the  only  issues  raised  by  the 
pleadings.  The  record  shows  that  appellants  introduced 
evidence,  that  a  custom  had  grown  up  in  German  district. 


1870.]  KING  -o.  EDWARDS.  237 

permitting  representation  of  ground  by  work  outside  of  the 
district,  as  in  cases  of  flumes  or  drain  ditches.  The  respond- 
ents sought  to  prove  that  there  had  been  no  such  custom,  as 
there  had  been  no  such  case  before  in  the  district.  Not  one 
of  respondents'  witnesses  asserted  that  there  was  any  cus- 
tom in  the  district,  making  a  forfeiture,  when  ground  was 
represented  in  the  manner  that  appellants  represented  their 
ground.  ISTot  one  of  respondents'  witnesses  testified  to  any 
fact  creating  a  custom,  but  simply  gave  their  own  opinion 
as  to  what  was  or  was  not  the  custom.  Such  evidence  could 
not  establish  a  custom  or  disprove  one.  2  Greenl.  Ev.,  §§ 
250,  252  ;  I  Black.  Com.  76,  77. 

The  court  erred  in  admitting  the  resolutions  offered  as 
the  laws  of  German  district.  English  v.  Johnson,  17 
Oal.  107. 

The  court  erred  in  refusing  to  allow  certain  questions  to 
be  put  to  the  witnesses,  Kane  and  Woods.  It  was  compe- 
tent to  ask  them,  on  cross-examination,  if  there  was  any 
custom  in  German  district  which  would  prevent  representa- 
tion by  bed-rock  flume  in  the  district  below.  1  Greenl.  Ev., 
^  446,  et  seq. ;  3  Estee'  s  PL  450,  §  49 ;  Jackson  v.  Feather 
River  Water  Co.,  14  Cal.  23.  If  there  was  no  custom  which 
prevented  such  mode  of  representation  and  subjected  the 
ground  to  forfeiture,  it  could  not  be  forfeited.  The  ques- 
tions were  asked  to  show  that  there  was  no  such  custom. 

The  court  erred  in  refusing  to  permit  appellants  to  show 
in  rebuttal  the  boundaries  of  German  district  at  the  time 
of  the  adoption  of  the  laws.  Appellants'  witnesses  never 
denned  these  boundaries.  It  was  clearly  competent  to  show 
that,  at  the  time  of  the  adoption  of  these  laws,  German  dis- 
trict embraced  appellants'  bed-rock  flume,  and  that  respond- 
ents were  seeking  to  apply  old  laws  or  customs  to  a  new 
district  with  smaller  dimensions  than  the  one  first  created- 

CHUMASERO  &  CHADWIOK,  for  respondents. 

This  action  is  to  recover  the  possession  of  a  mining  claim, 
and  is  governed  by  the  law  applicable  to  actions  of  eject- 
ment. The  appellants  must  recover  upon  the  strength  of 


238  KING  0.  EDWARDS.  [Aug.  T., 

their  own  title.     The  respondents  set  up  as  special  defenses, 
abandonment  and  forfeiture. 

The  question  of  abandonment  was  one  entirely  for  the 
jury,  and,  as  there  was  evidence  tending  to  prove  the  same, 
the  court  cannot  disturb  the  verdict.  Depuy  v.  Williams. 
26  Cal.  309  ;  Roberts  v.  Unger,  30  id.  676. 

The  defense  of  forfeiture  of  appellants'  right  to  th»j 
premises  in  dispute  was  clearly  established.  The  evidence 
showed  that  they  were  in  the  German  district ;  that  the 
miners  of  that  district  had  adopted  certain  rules  long  before 
appellants  claimed  this  ground  ;  that  these  rules  required  ;i 
certain  amount  of  work  to  be  done  in  the  district  to  hold 
mining  ground,  and  that  appellants  had  failed  to  perform  it. 
Whether  the  laws  were  in  force,  or  whether  the  appellants 
had  complied  with  these  laws,  or  whether  the  ground  had 
been  forfeited  under  the  laws  as  shown  by  the  evidence 
and  the  law  as  given  by  the  court,  were  questions  entirely 
for  the  jury  to  pass  upon,  and  their  verdict  cannot  be  dis- 
turbed by  this  court.  Packer  v.  Heaton,  9  Cal.  568;  St. 
John  v.  Kidd,  26  id.  263  ;  Depuy  v.  Williams,  26  id.  309  : 
Morton  v.  Solambo  C.  M.  Co.,  id.  532. 

No  exceptions  to  the  instructions  of  the  court  were  taken 
by  either  party.  The  appellants  only  claimed  a  possessory 
right  to  the  ground  in  dispute,  having  no  title  from  the  gov- 
ernment. That  right  could  only  be  preserved  by  a  com- 
pliance with  the  local  mining  laws,  and,  in  case  of  non- 
compliance  therewith,  a  forfeiture  would  arise.  Warring 
v.  Crow,  11  Cal.  366  ;  Gluckauf  v.  Reed,  22  id.  468  ;  St. 
John  v.  Kidcl.  26  id.  263. 

If  there  were  no  local  rules  in  the  district,  the  ground 
could  only  be  held  by  an  actual  and  continuous  posses- 
sion. 

Appellants  fail  to  make  out  any  case  for  a  new  trial  upon 
the  ground  of  newly-discovered  evidence.  They  show  no 
diligence,  and  the  newly- discovered  evidence  is  cumulative 
Gra.  &  W.  New  Trials,  473-485. 

All  questions  as  to  customs  or  usages  in  force  in  the  dis- 
trict were  properly  left  to  the  jury.  They  were  questions 


1870.]  KING  v.  EDWARDS.  239 

of  fact  for  them  to  determine,  and  their  verdict  cannot  be 
set  aside,  if  it  was  supported  by  the  evidence. 

KNOWLES,  J.  This  is  an  action  of  ejectment  brought  by 
the  appellants  to  recover  possession  from  the  respondents 
of  certain  mining  ground,  situated  in  German  district,  Con- 
federate gulch,  Meagher  county. 

The  appellants  claim  title  from  those  who  first  located  the 
same.  The  respondents  claim  that  appellants  forfeited  the 
ground  and  set  up  title  in  themselves. 

The  law  which  requires  work  to  be  done  on  mining  ground 
in  German  district  does  not  provide  that  a  failure  to  comply 
therewith  shall  work  a  forfeiture  of  the  ground. 

The  first  question  presented  for  us  to  answer  is,  whether 
it  is  necessary  for  this  law  to  so  provide  in  order  to  have 
this  effect, 

The  mining  customs  of  any  particular  mining  district 
have  the  force  and  effect  of  laws,  or,  in  other  words,  are  laws. 
The  local  courts  in  each  one  of  the  States  and  Territories, 
where  placer  mining  is  prosecuted  to  any  extent,  have  so 
recognized  them,  and  finally,  congress,  by  an  act  in  July, 
1866.  recognized  these  rules  and  customs  as  law. 

The  title  to  mineral  lands  is  vested  in  the  United  States. 
Any  citizen  of  the  United  States,  or  any  person  who  has 
declared  his  intention  to  become  such,  may,  by  complying 
with  tin-  local  rules  and  customs  of  any  district,  become 
vested  with  the  right  to  possess  and  mine  any  specific  por- 
tion of  mining  ground.  The  customs  which  point  out  the 
manner  of  locating  mining  ground  are  conditions  precedent. 
A  substantial  compliance  with  them  is  necessary.  The 
right  to  possess  and  mine  any  mining  claim  is  derived  from 
the  United  States  by  virtue  of  this  compliance.  The  United 
States  is  divested  of  this  right  as  effectually  as  if  these  rules 
and  customs  were  acts  of  congress,  for  they  now  are  the 
American  common  law  on  mining  for  precious  metals. 

The  regulations  of  miners  which  require  that  so  much 
work  must  be  performed  upon  each  claim  are  conditions 
subsequent.  The  locator  of  a  mining  claim  takes  subject 


240  KING  v.  EDWARDS.  [Aug.  T., 

to  this  condition.  So  long  as  tie  complies  with  it,  the  right 
to  possess  and  mine  the  same  remains  with  him.  Whenever 
a  condition  subsequent  is  attached  to  any  right  or  title 
vested  in  a  party  by  virtue  of  law,  it  is  not  necessary  that 
the  law  should  provide  that  a  failure  to  comply  therewith 
works  a  forfeiture  of  the  right.  Even  when  a  condition 
subsequent  is  expressed  in  a  deed,  it  is  not  necessary  that 
it  be  specified  that  a  failure  to  comply  with  it  entitles  the 
grantor  to  enter  and  take  possession  of  the  tenements.  It 
is  implied  that  he  has  this  right.  4  Kent's  Com.  140. 

It  is  true  that,  where  a  mine  is  forfeited,  it  becomes  for- 
feited to  the  United  States,  of  whom  the  locator  derived 
title.  Formerly  only  the  grantor,  or  his  heirs,  could  pro 
ceed  for  forfeiture  ;  but  under  the  law,  as  it  now  stands,  an 
assignee  of  the  rights  of  the  grantor  can  proceed  to  declare 
a  forfeiture.  4  Kent's  Com.  138,  139. 

When  mining  ground  is  forfeited  by  any  one,  it  again 
becomes  unappropriated  mineral  land  of  the  United  States. 
Any  one  who  relocates  it,  in  accordance  with  the  mining 
rules  and  customs  of  the  district  in  which  the  same  is 
situated,  has  the  rights  of  the  government,  and  may  pro- 
ceed to  declare  a  forfeiture,  or  may  set  up  the  defense  of 
forfeiture  in  an  action  against  him. 

From  the  statement  in  this  case,  it  would  seem  that  it  is 
conceded  that  both  parties  claim  by  virtue  of  the  local  rules 
and  customs  of  the  district  where  the  ground  is  situated. 
At  all  events,  as  far  as  the  statement  goes,  they  both  stand 
upon  the  same  footing.  It  is  doubtful  whether  any  person 
could  acquire  and  possess  a  mining  claim,  without  comply- 
ing with  the  local  rules  and  customs  upon  that  subject  since 
the  act  of  congress  of  July,  1866,  upon  the  subject  of 
mining. 

I  think  I  may  safely  say  that  this  rule  in  relation  to  the 
forfeiture  of  mining  claims  is  substantially  the  same  as 
entertained  by  miners  generally  themselves.  It  is  not  often 
that  a  mining  law  declares  that  a  failure  to  comply  with  the 
one,  in  relation  to  working  and  developing  mining  ground. 


1870.]  KING   x.  KDWABDS.  241 

works  a  forfeiture.     Yet  it  is  generally  considered  among 
miners,  that  such  a  failure  will  have  this  effect. 

The  Spanish  edicts  upon  mining  in  Mexico,  which  is  the 
source  from  which  we  derived  our  mining  rules  and  cus- 
toms, established  that  all  right  to  mining  ground  had  at- 
tached thereto  the  condition  of  development.  A  failure  to 
perform  so  much  work  on  any  mine  worked  a  forfeiture. 
There  a  proceeding,  in  its  nature  judicial,  was  always  insti- 
tuted, however,  to  declare  a  forfeiture  and  an  adjudicatior 
made  before  the  ground  was  subject  to  relocation.  This, 
however,  in  our  country,  is  not  necessary.  The  policy  of 
the  government  of  the  United  States  has  been  to  throw  open 
its  mines  to  its  citizens,  and  to  encourage  the  extraction  of 
as  much  precious  metals  therefrom  as  possible.  And  ob- 
serving that  miners,  by  their  customs,  have  attached  as  a 
condition  to  the  right  to  possess  and  mine  any  mining 
ground,  that  of  working  the  same,  they  have  recognized 
them.  The  condition  of  development  should  be  attached 
to  every  mine  ;  and  courts  should,  as  far  as  consistent  with 
legal  principles,  maintain  the  construction  of  mining  cus 
loins  which  accomplish  this  end. 

The  decisions  in  California,  which  generally  deserve  great 
weight  upon  the  subject  of  mining,  are  far  from  being  satis- 
factory upon  this  one  subject  —  forfeiture  of  mining  ground. 
Undoubtedly,  mining  customs  should  be  construed  strictly 
against  forfeiture,  as  laid  down  in  Colcman  v.  Clements,  23 
Gal.  248.  But,  where  a  custom  is  plain,  there  is  no  room  for 
construction,  and  a  court  must  take  it  as  it  reads,  and  give 
it  its  legal  effect.  The  case  of  McGarrity  v.  Byington  et 
al.,  12  Cal.  426,  and  that  of  Bell  v.  Bed  Rock  T.  &  M.  Co. 
certainly  lay  down  a  different  rule  from  that  expressed 
here,  while  St.  John  v.  Kidd,  26  Cal.  263,  lays  down  the 
same  rule.  It  is  to  be  observed  that  the  case  of  St.  John 
v.  Kidd  does  not  purport  to  overrule  that  of  McGarrity 
v.  Byington  et  al.  Nor  does  the  case  of  Bell  v.  The  Bed 
Roc7c  T.  &  M.  Co.  purport  to  overrule  that  of  St.  John 
v.  Kidd.  The  conclusion  that  we  must  come  to  from  this 
is,  that  this  point  has  never  been  fully  considered  by  the 
VOL.  L  — 31. 


242  KING  v.  EDWARDS.  [Aug.  T., 

California  courts.  No  reasoning  is  given  in  support  of  the 
rule,  in  either  case,  and  no  authorities ;  and,  hence,  it  is 
impossible  to  tell  how  they  arrived  at  their  conclusions. 
The  rule  we  have  expressed  we  believe  is  in  accordance  with 
the  established  principles  of  law,  and  comports  with  the 
understanding  miners  have  of  their  own  customs,  and  is 
consonant  with  the  policy  of  the  general  government. 

The  point  made  by  appellants'  counsel,  that,  because  there 
was  a  dispute  as  to  what  the  customs  in  German  district 
were,  therefore  the  jury  were  not  warranted  in  finding  a 
forfeiture,  is  not  well  taken.  The  record  shows  that  there 
was  considerable  evidence  as  to  what  were  the  customs  of 
German  district.  This  issue  and  the  one  as  to  what  customs 
were  in  force  in  the  district,  was  properly  left  to  the  jury, 
and  this  court  must  presume  that  they  found  the  one  requir- 
ing work  to  be  done  in  the  district,  in  order  to  represent  a 
mining  claim  in  force. 

The  objection  to  the  questions  asked  Kane,  as  "to  whether 
he  knew  of  any  custom  within  German  district  which  will 
prevent  the  representation  of  ground  in  said  district,  by 
work  on  a  bed-rock  flume,  commenced  in  the  district  below, 
and  as  to  whether  he  knew  of  any  custom  which  had  grown 
up  within  the  limits  of  this  district,  whereby  parties  were 
prohibited  from  representing  mining  ground  in  one  district, 
by  a  bed-rock  flume  started  in  another,  where  the  bed-rock 
flume  is  to  drain  and  work  all  mining  ground  belonging  to 
the  party  above  the  head  of  the  bed-rock  flume,"  were 
properly  sustained.  The  written  laws  of  the  district,  which 
presumptively  were  in  force,  required  work  in  the  district 
to  represent  ground  therein.  If  any  other  custom  had 
grown  up  in  that  district,  allowing  parties  to  represent 
ground  by  work  outside  of  the  district,  it  devolved  upon 
the  appellants  to  show  it,  as  this  would  be  considered  an 
amendment  to,  or  modification  of,  the  former  custom. 

It  maybe  further  remarked,  in  relation  to  these  questions, 
that,  from  all  that  appears,  they  are  not  proper  cross-exami- 
nation. All  that  appears  from  the  record, in  the  examination 
of  tht->  witness  in  chief,  is.  that  the  witness  did  not  know  of 


1870.]  KINO  v.  EDWARDS.  248 

any  custom  in  German  district  allowing  ground  to  be  repre- 
sented by  work  outside  of  the  district,  and  that  he  was 
familiar  with  the  customs  of  that  district. 

There  was  not  sufficient  evidence  to  warrant  the  court 
holding  that  the  jury  would  be  justified  in  finding  that 
German  district  had  been  abandoned  or  merged  in  a  gene- 
ral district  for  Confederate  gulch,  called  Confederate  district. 
Hence,  the  objections  to  the  third  question  asked  by  appel- 
lants of  Kane,  and  the  one  asked  O' Brian,  in  relation  to 
the  customs  of  Confederate  gulch,  were  properly  sustained. 
When  there  are  customs  upon  any  one  subject  in  a  district, 
the  parties  must  be  limited  to  those.  The  customs  of  an 
outside  district  could  not  be  introduced  to  vary  them. 

The  appellants'  counsel  asked  Grubb,  one  of  the  defend- 
ants' witnesses,  the  following  question  :  "  If  a  man  has  a  bed- 
rock flume  in  a  gulch  with  which  he  designs  to  mine  sev- 
eral pieces  of  mining  ground  in  the  same  gulch,  that  lie 
separate  from  each  other  in  different  districts,  do  you  know 
of  any  custom  in  German  district  that  requires  a  separate 
flume  for  each  piece  of  ground  to  represent  the  same  ?" 

The  first  point  that  may  be  noticed  in  relation  to  this 
question  is,  that  if  answered  in  the  affirmative  it  would 
show  a  custom  in  German  district  in  relation  to  what  would 
be  representation  in  another  district,  and  if  answered  in  the 
affirmative,  surely  the  appellants  would  not  have  been  bene- 
fited, as  it  was  not  pretended  that  they  had  two  bed-rock 
Humes.  If  the  witness  had  answered  in  the  negative,  I  am 
still  unable  to  perceive  what  benefit  the  appellants  would 
have  derived.  The  written  laws  of  the  district  had  been 
introduced  in  evidence,  and  these  provided  for  work  in  the 
district  to  represent  mining  ground  therein,  and  as  before 
remarked,  these  laws  were  presumptively  in  force,  and  it 
devolved  upon  appellants  to  show  a  positive  custom  allow- 
ing them  to  represent  their  ground  by  work  outside  of  the 
district.  The  mere  fact  that  there  was  no  direct  mining  rule 
prohibiting  ground  from  being  represented  in  this  way 
amounted  to  nothing.  The  point  they  were  required  to 
establish  was,  that  there  was  a  positive  custom  sanctioning 


244  KING  ».  EDWAKDS.  [Aug.  T., 

this  kind  of  representation.  A  court  should  not  reverse  a 
case  unless  it  appears  clearly  that  the  appellant  was  either 
actually  or  presumptively  damaged  by  the  error  com- 
plained of. 

The  written  customs  introduced  by  respondents  were 
properly  received.  Sufficient  evidence  concerning  them  had 
been  introduced  to  raise  a  presumption  that  they  were  laws 
of  the  district.  It  is  not  claimed  that  they  had  possession 
of  the  other  laws  of  the  district  and  refused  to  introduce 
them.  It  was  left  to  the  jury  to  determine  whether  they 
were  the  laws  of  the  district  or  not.  If  they  found  that 
they  were  prima  facie,  they  were  in  force. 

The  court  refused  to  allow  the  appellants  to  introduce 
evidence  to  the  effect  that  at  the  time  the  laws  of  German 
district  were  established  German  district  was  much  larger 
than  at  present,  and  embraced  where  appellants'  bed-rock 
Hume  is  situated. 

It  will  be  observed  that  appellants  do  not  seek  by  this 
question  to  determine  the  size  of  the  district  at  the  time  the 
mining  ground  was  located  by  the  grantors  of  appellants, 
but  the  size  of  the  district  at  the  time  laws  were  passed. 
Undoubtedly  those  who  have  created  a  mining  district  may 
change  its  extent  so  that  they  do  not  interfere  with  vested 
rights.  If  these  claims  were  located  by  those  under  whom 
appellants  claim  subsequent  to  the  change  in  the  size  of  the 
district,  appellants  could  not  complain,  and  from  all  that 
appears  from  the  record  this  may  have  been  the  case.  In 
conclusion,  I  may  say  that  where  it  appears  that  mining 
ground  could  not  be  worked  profitably  without  going  out- 
side the  district  to  run  a  bed-rock  flume  or  drain  race  to  it, 
a  custom  which  would  require  work  to  be  done  in  the  dis- 
trict to  represent  it,  might  be  considered  unreasonable.  All 
mining  customs  must  be  reasonable.  In  this  case,  however, 
1  gather  from  the  whole  record  that  the  appellants  had 
mining  ground  in  the  district  below  called  Baker  district. 
That  the  primary  object  of  this  bed-rock  flume  was  to  work 
this  ground.  I  do  not  think  any  mining  custom  is  unrea- 


1870.]     CARRHAET  t>.  MONTANA  MINERAL,  ETC.,  Co.        246 

sonable  which  requires  work  to  be  performed  directly  in 
reference  to  ground  in  the  district  in  which  it  is  in  force. 
For  these  reasons  the  judgment  of  the  court  below  is 

affirmed. 

Exceptions  overruled. 


CARRHART,  administrator,  respondent,  v.  MONTANA  MIN- 
ERAL LAND  AND  MINING  COMPANY,  appellant. 

DESCENT  OF  QUARTZ  LOBES.  The  statutes  of  this  Territory,  which  regulate  the 
descent  and  distribution  of  real  property,  are  applicable  to  quartz  lodes. 

ADMINISTRATOR  CANNOT  MAINTAIN  REAL  ACTIONS.  An  administrator  cannot 
maintain  an  action  of  ejectment  for  the  possession  of  realty,  or  trespass  for 
damages  to  the  same. 

Appeal  from  tJie  Second  District,  JBeaverTiead  County. 

THIS  action  was  tried  by  KNOWLES,  J. 

The  facts  are  stated  in  the  opinion.  The  fourth  ground 
of  the  demurrer  to  the  amended  complaint  was  as  follows  : 
"  Complaint  shows  that  there  is  an  administrator  of  the 
estate  of  George  Carrhart,  and  defendants  demur  to  mis- 
joinder  of  parties,  on  the  ground  that  the  action  should  be 
prosecuted  in  the  name  of  the  administrator  alone."  The 
arguments  of  counsel  upon  questions  that  are  not  decided 
by  the  court  are  not  reported. 

WORD  &  SPRATT,  for  appellants. 

The  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action.  The  respondent  has  no  interest  in  the 
property,  or  right  to  the  possession  of  the  same.  At  com- 
mon law,  the  realty  of  the  deceased  descends  to  the  heir 
when  there  is  no  last  will ;  in  no  event  does  it  go  to  the 
administrator,  nor  does  the  administrator  acquire  any  inter- 
est in,  or  right  of  possession  to.  the  same.  1  Will,  on 
Exec.  r>60,  568,  715  ;  Smith  v.  McConnell,  17111.  135  ;  King 
v.  Jones,  1  Eng.  0.  L.  223 ;  Emeric  v.  Penmman,  26 
Cal.  122. 


246        CARRHART  c.  MONTANA  MINERAL,  ETC.,  Co.  [Aug.  T.; 

The  common-law  doctrine  has  been  adopted  in  this  Ter- 
ritory. Acts  1865,  356.  Under  our  statutes,  the  adminis- 
trator can  have  no  title,  interest  or  right  to  the  possession 
of  the  realty  of  his  intestate.  Acts  1865,  §  1,  art.  2,  p.  285. 
He  has  nothing  but  the  naked  power  to  sell  for  the  payment 
<>f  debts,  or  make  short  leases  under  the  direction  of  the 
probate  court.  The  right  to  the  possession  belongs  to  the 
heirs  or  devisees,  and  they  are  the  proper  parties  to  sue  for 
an  injury  to  the  same,  or  maintain  ejectment.  The  admin- 
istrator is  not  the  real  party  in  interest.  Civ.  Prac.  Act,  §4. 

Our  statute  of  descent  and  distribution  was  in  force  in 
this  Territory  before  the  suit  was  commenced.  Acts  1867, 
}).  64,  §  1.  The  administrator  cannot  take  any  interest  in 
riie  realty  of  the  intestate.  Salmon  v.  Symonds,  30  Cal. 
301.  Our  administration  law  and  the  law  of  descents  and 
distributions  are  literal  copies  from  the  laws  of  Missouri. 
The  administrator  cannot  maintain  an  action  of  ejectment, 
<>r  possess  or  control  the  realty  of  the  intestate.  Burdyne 
\.  Mackey,  7  Mo.  374 ;  AubucTion  v.  Lory,  23  id.  99 ; 
Sherman  v.  Dutch,  16  111.  285 ;  Hopkins  v.  McOan,  19 
id.  113. 

The  decisions  of  California,  New  York  and  other  States 
are  based  upon  different  statutes,  that  have  repealed  the 
common  law  and  authorized  the  administrator  to  possess 
and  control  the  realty. 

The  defendants  were  entitled  to  judgment  on  the  facts 
found  by  the  court  below.  The  judgment  is  void.  The 
respondent  is  a  stranger  to  the  whole  matter.  The  respond- 
ent's claim  was  barred  b^y'the  statute  of  limitations  of 
Montana. 

C.  MEAD  and  H.  N.  BLAKE,  for  respondent. 

The  appellant,  having  filed  no  statement,  cannot  complain 
of  any  error  outside  of  the  judgment  roll.  Harper  v. Minor, 
27  Cal.  107  :  Wethcrbee  v.  Carroll,  33  id.  553. 

The  objection  that  the  plaintiff  has  not  the  legal  capacity 
to  sue  must  be  raised  by  demurrer  under  that  head.  It 
r'annot  now  be  urg^d.  under  the  sixth  subdivision,  that  the 


1870.]    CARRHART  v.  MONTA.VA  MINERAL,  ETC.,  Co         247 

complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  2  Whit.  Pr.  54  ;  Civ.  Prac.  Act,  §§  40,  44,  45  ; 
Connecticut  Bank  v.  Smith,  17  How.  Pr.  487;  Bank  of 
Lowmlle  v.  Edwards,  11  id.  216  ;  Bank  of  Havana  v. 
Wickham,  16  id.  97. 

The  judgment  will  not  be  reversed  if  it  can  be  gathered 
from  the  complaint,  as  a  whole,  that  plaintiff  has  any  cause 
of  action.  Summers  v.  Parish-,  10  Cal.  347;  Hallock 
v.  Jaudin,  34  id.  174. 

An  administrator  may  sue  without  joining  with  him  the 
persons  for  whose  benefit  the  action  is  prosecuted.  Civ. 
Prac.  Act,  §  G.  The  administrator  must  commence  and 
prosecute  all  actions  which  may  be  maintained,  and  are 
necessary  in  the  course  of  his  administration.  Acts  1865, 
288,  §  23. 

The  administrator,  under  the  laws  of  Montana,  has  a 
right  of  possession  to  the  real  and  personal  property  of  the 
deceased.  Acts  1865,  271,  §  14;  272,  §  18;  277,  §§  46,  47; 
-282,  §  66  ;  285,  §§  1,  2,  3,  4;  291,  §§  42,  43.  The  adminis- 
trator in  this  action  is  the  proper  plaintiff.  Defendant  ob- 
jected to  the  joinder  of  the  heirs  by  demurrer,  and  insisted 
that  the  action  should  be  prosecuted  in  the  name  of  the 
administrator  alone.  Defendant's  demurrer,  fourth  ground. 
Har-wood  v.  Mayre,  8  Cal.  580 ;  Curtis  v.  Herrick,  14  id. 
119;  Curtis  v.  Suiter,  15  id.  264;  Meeks  v.  Hahn,  20  id 
t;28.  The  action  of  the  court  in  striking  out  the  names  of 
the  heirs  as  plaintiffs,  if  erroneous,  cannot  be  taken  advan- 
tage of  by  appellant.  It  was  a  ruling,  requested  by  appel- 
lant, and  appellant  cannot  complain  of  an  error  of  court 
committed  in  its  favor.  Gaven  v.  Dropman,  5  Cal.  342; 
Wilkinson  v.  Parrott,  3*2  id.  102. 

Tin-  complaint  is  sufficient.  Payne  \.  Treadwell,  16  Cal. 
242;  JIall«-k  \.  .][!,v<:r.  id.  577;  Salmon,  v.  St/monds,  24 
id.  26*' ;  Curpcnt^r  v.  ScJimidt.  26  id.  512  ;  Duncan  v.  Dun- 
m,v.  10  Mo.  308. 

The  art  regulating  descents  and  distributions  in  Montana, 
approved  November  21,  1867,  does  not  apply  to  this  case, 
<reor<r, .  f'aiTliart  having  died  in  May,  1863. 


248        CARRH AKT  v.  MONTANA  MINERAL,  ETC.,  Co.  [Aug.  T., 

SYMES,  J.  This  was  an  action  brought  by  plaintiff  as 
administrator  against  the  defendant,  in  the  nature  ol  eject- 
ment, for  the  possession  of  a  claim  on  a  qnartz  lode  and 
damages  for  detention.  The  complaint  was  first  filed  in  the 
name  of  the  administrator  alone ;  an  amendment  was  al- 
lowed on  motion  of  plaintiff,  making  several  persons,  alleged 
heirs  at  law,  parties,  an  amended  answer  and  replication 
filed,  and  then,  on  the  trial,  on  motion  of  defendant,  some 
of  the  heirs,  who  had  been  made  parties  by  amendment, 
were  stricken  from  the  record,  and,  on  motion  of  plaintiff, 
the  other  alleged  heirs  were  stricken  from  the  record,  leav- 
ing the  case  to  proceed  on  the  amended  complaint  with  the 
said  administrator  as  sole  plaintiff.  The  case  was  tried  in 
the  court  below  in  February,  1869,  a  jury  being  waived, 
and  judgment  rendered  for  the  plaintiff  for  the  recovery  of 
the  quartz  claim  and  $5,000  damages  for  detention.  A  motion 
for  new  trial  argued  and  overruled,  and  appeal  taken  from 
order  and  errors  appearing  on  the  record. 

There  was  no  regular  statement  on  motion  for  new  trial, 
and  the  only  question  appearing  for  the  consideration  of 
this  court  is,  does  the  complaint  state  facts  sufficient  to  con- 
stitute a  cause  of  action  ? 

The  complaint  alleges  that  George  Carrhart  died  in  the 
month  of  May,  1863,  intestate,  seized  and  possessed  among 
other  things  of  claim  number  seven,  west  from  discovery, 
on  Dacota  quartz  lode,  in  Beaverhead  county,  Montana, 
containing  one  hundred  feet  on  said  lode  ;  that  on  the  7th 
of  November,  1864,  plaintiff  was  duly  appointed  adminis- 
trator of  the  estate  of  said  deceased  ;  that  said  estate  was 
still  unsettled,  and  plaintiff  is  still  administrator  thereof. 
Further,  that  William  Carrhart  and  several  other  heirs,  some 
minors,  claim  an  interest  in  the  estate  of  the  said  deceased,  be- 
ing next  of  kin  to  and  legal  representatives  thereof  ;  that  there 
were  no  other  heirs  or  legal  representatives  of  deceased  who 
have  an  interest  in  the  action  ;  that  the  value  of  the  prop- 
erty is  85,000;  that  while  said  plaintiffs  were  in  possession 
and  entitled  to  the  possession  of  said  property,  on  or  about 
the  7th  day  of  May,  1867,  the  said  defendants  wrongfully 


1870.]    GARRHART  v.  MONTANA  MINERAL,  ETC.,  Co.        249 

and  unlawfully  went  upon  and  took  possession  of  said 
property,  depriving  the  plaintiffs  of  their  true  and  rightful 
possession  thereof ;  that  they  have  and  are  continuing  to  hold 
their  unlawful  possession  of  said  property,  and  have  for  a 
long  time,  to  wit :  from  on  or  about  the  7th  day  of  May, 
1867,  worked  and  continue  to  work  upon  and  mine  the 
same,  and  are  setting  up  and  claiming  a  false  and  pre- 
tended title  to  the  same  to  the  damage  of  the  plaintiffs 
of  the  sum  of  $2,500,  and  that  they  have  taken  and  con- 
tinue to  take  large  amounts  of  gold  quartz  and  other 
valuable  minerals  from  the  said  claim  and  property,  to  the 
further  damage  of  $2,500.  Plaintiffs  ask  for  possession  of 
property,  that  the  title  set  up  by  defendants  be  declared 
null  and  void,  that  they  have  judgment  for  damages,  and 
that  a  receiver  be  appointed  to  take  charge  of  the  property 
during  pendency  of  suit,  and  for  other  proper  relief. 

The  answer  denies  allegations  of  complaint  and  sets  up 
some  new  matter  and  a  reply  was  filed  ;  but  as  the  only  ques- 
tion arising  is  as  to  the  sufficiency  of  the  complaint  to  sustain 
the  findings  and  judgment  of  the  court  below  it  is  unneces- 
sary to  consider  them.  Two  questions  are  involved  in  the 
decision  of  this  case  : 

First,  is  the  property  sued  for  in  this  action  real  estate  ? 

Second,  if  so,  can  the  administrator,  as  such,  sue  for  and 
recover  possession  and  damages  done  to  the  realty  after 
death  of  decedent  and  for  withholding  the  same  ?  By  the 
statute  law  of  this  Territory  all  claims  on  quartz  lodes  or 
mineral  are  made  real  estate,  and  it  provides  that  they  shall 
descend  to  their  heirs  and  assigns.  Act  December  26,  1864. 
And  quartz  claims  have  been  treated  and  governed  by  the 
rules  applicable  to  real  estate  by  the  supreme  court  of  Cali- 
fornia. We  are  of  opinion  that  quartz  lodes  in  this  Terri- 
tory are  to  be  governed  by  the  rules  applicable  to  the  descent 
and  distribution  of  realty. 

Second,  it  is  unnecessary  to  dwell  upon  the  common-law 
doctrine  that  all  realty  descends  to,  and  vests  in,  the  heirs 
on  the  death  of  the  testator,  and  that  the  executor  or  ad- 
YOL.  L  — 32. 


•250        CARRHART  v.  MONTANA  MINERAL,  ETC.,  Co.  [Aug.  T.. 

mimstrator   cannot  maintain   ejectment  for  possession,   or 
trespass  for  damages  to  the  same. 

Does  the  statute  law  of  this  Territory  change  the  common 
law  so  as  to  give  the  administrator  this  right?  The  chap- 
ters of  our  law  in  regard  to  descents  and  distributions  and 
administration  of  estates  are  almost  literal  copies  from  the 
Missouri  statute ;  and  the  first,  second,  third  and  fort}-- 
second  sections  of  the  chapter  governing  administration  - 
which  are  relied  on,  in  this  case,  by  respondents  to  sustain 
the  position  that  the  administrator,  as  such,  can  maintain 
ejectment  for  real  estate  of  deceased  —  are,  in  effect,  the 
same.  It  is  contended  that  the  act  relating  to  descents  and 
distributions,  passed  November  21,  1867,  and  which  pro- 
vides that  all  real  estate  should  descend  to  the  heirs  or 
devisees,  being  after  death  of  decedent  herein,  although  be- 
fore commencement  of  this  suit,  does  not  govern  in  this 
case.  But  this  is  immaterial  as  it  is,  as  to  the  question  in 
this  case,  declaratory  of  the  common  law. 

In  Burdyne  v.  Mackey,  executrix  of  Mackey,  7  Mo.  374, 
375,  the  question  is  discussed ;  and  the  court,  SCOTT,  ,T., 
say.  ''that  it  is  riot  contended  that  the  right  of  an  executor 
or  administrator  to  maintain  ejectment,  or  that  the  title  to 
realty  vests  in  him,  has  any  countenance  at  common  law.v 
That  this  right  must  be  derived  from  statute,  and  it  must 
be  supposed  that  such  an  innovation,  so  much  at  variance 
with  the  opinion  of  all  those  instructed  in  the  science  of  the 
common  law.  the  introduction  of  which  into  our  Code  must 
unsettle  and  disturb  so  many  principles  heretofore  estab- 
lished, should  derive  its  existence,  not  from  mere  implica- 
tion, but  from  express  enactment.     And  in  AubucJion  v. 
L»ry.  23  Mo.  99,  which  was  an  action  of  trespass  by  an 
administratrix  for  damage  to  real  estate  of  decedent,  the 
foiirt  cited  the  common  law  to  show  that  it  cannot  be  main- 
tained, and  state  that  the  statute  which  gives  the  adminis- 
trator power  to  sell  for  payment  of  debts,  and  to  make 
short  leases,  under  direction  of  the  probate  court,  vests  no 
interest  in  the  real  estate  in  him.     Although  our  statute 
provides,  in  the  section  referred  to  —  being  the  same  as  the 


1870.]    CARRHART  t>.  MONTANA  MINERAL,  ETC.,  Co.        253 

Missouri  statute  —  that  the  administrator  shall  take  posses- 
sion of  all  evidences  of  title  to  real  estate,  and  make  an 
inventory  of  all  real  and  personal  estate,  and  sell  the  same 
on  petition  for  the  payment  of  debts,  and  make  leases  of 
the  same,  not  longer  than  one  year,  under  direction  of  the 
probate  court,  that  does  not,  under  the  construction  given 
by  the  supreme  court  of  Missouri,  vest  any  title  or  interest 
in  the  administrator,  or  give  him  the  right  to  maintain 
ejectment.  We  think  the  construction  given  by  the  su- 
preme court  of  Missouri  correct  in  principle,  and  accord- 
ing to  the  intention  of  the  legislature.  -Had  the  legislature 
intended  to  vest  the  title  or  possession  of  the  realty,  for  the 
purpose  of  administration  and  distribution  to  the  heirs,  in 
the  administrator,  they  would  certainly  have  provided  for 
his  taking  possession  of  the  same  ;  but  they  provide  for  his 
taking  possession  of  the  evidences  of  title  and  returning 
inventory  of  realty,  and  not  for  taking  possession  thereof - 
evidently  intending  that  he  should  look  after  the  realty  for 
the  benefit  of  the  heirs.  And,  also,  under  the  direction  of 
the  probate  court,  he  may  lease  it,  not  longer  than  one  year 

evidently  meaning  until  the  heirs  can  be  notified  and 
rake  possession.  The  authorities  referred  to  by  respondent 
in  California,  to  sustain  their  position,  are  under  special 
statutes,  and  have  no  force  here. 

The  complaint  in  this  case  alleges  that  the  plaintiffs,  the 
administrator  and  heirs,  were,  after  the  death  of  the  deceased, 
and  before  the  commencement  of  the  suit,  the  owners,  and 
in  possession  of  the  quart/  claims  sued  for  ;  and  that,  being 
in  possession,  the  defendants  unlawfully  ousted  them,  and 
still  hold  possession,  and  have  been  taking  out  quartz  ore, 
and  thereby  damaged  the  realty  $5,000.  Before  the  trial 
all  the  heirs  were  stricken  from  the  record,  leaving  the  alle- 
gations of  the  complaint  the  same,  to  wit :  that  they  were 
the  owners  in  possession,  and  have  been  ousted  therefrom 
by  the  defendants.  Upon  these  allegations  judgment  was 
rendered  for  the  plaintiff,  the  administrator,  for  the  recovery 
of  the  possession  of  said  property,  and  $5,000  damages  for 
ouster  and  detention.  The  allegations  of  the  complaint  are 


252  TERRITORY  EX  REL.  FISK  v.  RODGERS.    [Aug.  T., 

not  sufficient  to  support  this  judgment,  and  it  must  be 
reversed. 

The  case  seems  to  have  been  tried  below  without  this 
question  having  been  argued,  for  the  names  of  the  heirs 
were  all  stricken  from  the  record  on  the  suggestion  of  both 
parties. 

Judgment  reversed  and  cause  remanded. 

New  trial  granted 


TERRITORY    EX    REL.    FISK,    respondent,    «.     RODGERS, 

appellant. 

PLEADING — insufficient  denials  —  issues.  An  answer  that  "denies  legally  and 
lawfully  "  the  allegations  of  the  complaint,  raises  no  issue  of  fact. 

TERRITORIAL,  AUDITOR  —  appointment  by  governor  and  council.  Under  the 
organic  act  of  this  Territory,  the  office  of  territorial  auditor  must  be  filled 
by  the  governor,  who  nominates  and,  by  and  with  the  advice  and  consent 
of  the  legislative  council,  appoints  a  person  to  fill  said  office. 

STATUTORY  CONSTRUCTION  —  statute  relating  to  election  of  auditor  void.  The  act 
approved  November  16, 1867,  which  provides  for  the  election  of  a  territorial 
auditor  by  the  legislative  assembly  and  the  voters  of  the  Territory,  conflicts 
with  the  organic  act  and  is  void;  such  an  election  confers  no  right  upon  the 
party  claiming  the  office. 

AUDITOR  NOMINATED  BY  GOVERNOR — confirmation  by  council.  A  person, 
who  has  been  nominated  by  the  governor  to  fill  the  office  of  territorial 
auditor,  has  no  right  thereto  until  the  legislative  council  has  confirmed  the 
nomination. 

GOVERNOR  CANNOT  FILL,  CERTAIN  VACANCIES  IN  OFFICE.  The  governor  has  no 
authority  from  the  organic  act,  or  the  legislative  assembly,  to  fill  a  vacancy 
in  the  office  of  territorial  auditor. 

OFFICE  OF  TERRITORIAL,  AUDITOR.  The  legislative  assembly  has  created  th« 
office  of  territorial  auditor,  and  can  abolish  it. 

Appeal  from  the  First  District,  Madison  County. 

THE  facts  are  stated  in  the  opinion.     The  judgment  was 
rendered  by  WARREN,  J. 

WORD  &  SPRATT  and  WOOLFOLK  &  TOOLE,  for  appellant. 

The  governor  cannot  fill  the  office  of  territorial  auditor 

by  appointment,  after  he  has  exercised  the  appointing  power 


1870.]          TERRITORY  EX  REL.  FISK  v.  RODGERS.  253 

in  the  iirst  instance,  under  section  7  of  the  organic  act. 
The  expression  of  one  thing  is  the  exclusion  of  all  others. 
The  organic  act  provides  the  manner  of  filling  the  office 
and  defines  the  powers  of  the  executive.  Smith's  Const. 
Law,  667,  677,  778,790;  2  Story's  Const.  403,  1542,  1543; 
People  v.  Langdori,  8  Cal.  15 ;  People  v.  Whitman,  10 
id.  40. 

There  was  no  vacancy  for  the  governor  to  fill.  The  legis- 
lative assembly  can  provide  for  the  filling  of  vacancies  dur- 
ing the  recess  of  the  council,  if  the  organic  act  is  silent 
thereon.  People  v.  Oulton,  28  Cal.  44  ;  People  v.  Tilton,  37 
id.  618;  Bourlaiidv.  Hildreth,  26  id.  161.  The  governor 
exhausted  his  appointing  power  in  the  first  instance,  and 
the  otlice  became  vacant  by  force  of  the  organic  act.  The 
legislature  has  ever  since  filled  the  vacancy,  and  the  incum- 
bent held  by  virtue  of  the  laws,  which  the  legislature  had  a 
right  to  make.  Tappan  v.  Gray,  9  Paige,  507. 

The  law  creating  the  office  of  auditor  provides  that  the 
incumbent  shall  hold  over  till  a  successor  is  qualified.  Acts 
1865,  533-539. 

The  governor  cannot  declare  a  vacancy.  There  is  no  find- 
ing or  admission  in  the  proceedings  that  any  proper  tribunal 
had  declared  the  office  vacant  at  the  time  respondent  was 
appointed.  Was  the  office  of  auditor  vacant  by  operation 
of  law?  If  there  was  a  vacancy,  the  legislature  had  the 
power  to  provide  the  manner  of  filling  it,  and  this  mode 
must  be  strictly  followed.  Acts  1869,  88,  §  2  ;  Smith's  Const. 
Law,  790. 

The  governor  has  no  right  to  remove  officers.  The  leg- 
islature lias  limited  this  right  to  a  single  cause.  Acts  1867, 
73,  £  8  ;  Tappan  v.  Gray,  9  Paige,  507  ;  People  v.  Carrique, 
•I  Hill,  93. 

The  court  finds  that  appellant's  term  of  office  expired  in 
1809  at  the  general  election.  The  statute  declaring  in  what 
oases  vacancies  occur  applies  to  events  occurring  before  the 
expiration  of  the  term  of  office  and  cannot  be  extended  to 
include  other  cases.  Acts  1867,  72,  §  7.  Section  2  of  the 
Laws  of  1869  repeals  the  ninth  section  of  the  Laws  of  1867, 


254  TERRITORY  EX  REL.  FISK  o.  RODGERS.    [Aug.  T.; 

page  73.  These  statutes  cannot  be  construed  together.  By 
repealing  the  section  providing  for  the  governor  alone  to  fill 
vacancies,  and  providing  for  the  same  to  be  filled  by  the 
governor  and  legislative  council,  the  legislature  intended 
that  the  governor  alone  should  not  fill  such  vacancy.  2 
Story's  Const,  405,  1544. 

The  law  makes  no  distinction  between  de  facto  officers. 
Respondent  must  show  a  perfect  right  to  the  office  of  appel- 
lant. There  must  be  a  vacancy  and  respondent  must  be 
appointed  and  qualified  according  to  law.  Peoplev.  Smyth, 
28  Cal.  21 ;  18  Mo.  341. 

The  predecessor  of  appellant  surrendered  up  the  books 
and  records  and  appellant  was  holding  as  his  successor. 
There  was  no  such  vacancy  as  would  authorize  the  governor 
to  act.  The  office  of  auditor  is  never  vacant  when  there  is 
any  one  exercising  its  functions.  The  incumbent  has  the 
custody  of  public  records.  People  v.  Whitman,  10  Cal.  38  ; 
People  v.  Oulton,%$  id,  44;  People  v.  Stratton,  id.  382; 
People  v.  Van  Horn,  18  Wend.  518. 

Congress  authorized  the  legislature  to  re-enact  the  law  pro- 
viding for  the  election  of  auditor,  and  it  is  valid.  2  Story'  e 
Const.  1537.  When  the  law  provides  that  one  can  hold 
office  until  his  successor  is  qualified,  the  right  so  to  hold. 
after  the  expiration  of  his  term,  is  a  tenure  by  law.  People 
v.  Sanderson,  30  Cal.  160.  The  statutes  prescribe  the  mode 
of  removing  an  officer,  and  it  can  be  done  in  no  other  way. 
Civil  Prac.  Act,  §§  310-316  ;  People  v.  Oarrique,  2  Hill,  104. 

The  courts  will  not  declare  an  office  vacant,  and  leave 
the  books  and  records  without  a  custodian.  Tappan  v. 
Gray,  9  Paige,  507. 

The  right  of  respondent  to  recover  the  office  has  abated 
during  the  pendency  of  this  appeal.  Civil  Prac.  Act,  §  16 : 
Sup.  Ct.  Rule  lo. 

W.  F.  SANDERS  and  H.  5s".  BLAKE,  for  respondent. 

The  office  of  territorial  auditor  is  appointive.  Organic 
Act.  §  7.  Sections  3  and  4  of  the  act  of  November  16, 
1867  i'p.  72X  conflict  with  the  organic  act,  and  are  void. 


1870.]         TERRITORY  EX  UEL.  FISK  c.  RODGERS.  255 

The  claim  of  appellant  to  hold  said  office,  being  based  on 
said  act,  is  invalid. 

The  appellant  was  never  nominated  or  appointed  by  the 
executive  of  Montana.  The  respondent  was  so  nominated 
and  appointed.  It  was  necessary  for  the  governor  to  so  act 
to  confer  authority  on  any  person  to  fill  the  office  of  auditor , 
Organic  Act,  §§  2,  7  ;  Acts  1869,  88. 

The  election  of  appellant  was  illegal,  and  the  office  was 
vacant.  The  executive,  by  appointing  respondent  auditor, 
thereby  removed  appellant.  Exparte  Hennen.  13  Pet.  139  , 
2  Impeach,  of  Johnson,  160,  201,  202,  315-317. 

The  organic  act  gives  the  governor  the  power  of  removal, 
and  the  legislature  cannot  impair  it.  Under  similar  pro- 
visions the  power  of  the  executive  to  remove  certain  officers 
has  been  conceded  for  two  generations.  1  Kent,  316 ;  2 
Impeach,  of  Johnson,  315. 

The  organic  act  requires  the  executive  to  take  care  "that 
the  laws  be  faithfully  executed."  §  2.  These  words  are 
borrowed  from  the  United  States  constitution,  and  have  a 
definite  meaning.  Congress  intended  to  weave  that  mean- 
ing into  our  form  of  territorial  government.  Smith's  Const. 
Law,  §  482  ;  U.  S.  Const.,  art.  2,  §§  1,  3. 

The  office  of  auditor  is  in  the  executive  department. 
Was  there  a  vacancy  in  the  office  August  28,  1869,  in  con- 
templation of  law 1  People  v.  Parker,  37  Cal.  639.  Appel- 
lant never  held  the  office  dejure.  Appellant's  argument, 
in  practice,  gives  the  executive  power  to  the  legislature,  and 
allows  it  to  tie  the  governor1  s  hands  so  that  he  cannot  see 
that  the  laws  are  faithfully  executed.  A  part  of  the  power 
to  enforce  those  laws  must  be  the  turning  out  of  an  intruder 
from  an  executive  office.  The  cases  cited  by  appellant,  of 
an  officer  de  jure  holding  beyond  his  ordinary  term,  are, 
decided  upon  the  principle  that  the  holding  over  is  a  part 
of  the  legal  term.  They  do  not  justify  an  intruder  ab  hiltlo. 
The  limitation  on  executive  power  by  the  legislature,  re- 
quiring that  permanent  appointments  shall  be  made  with 
the  advice  and  consent  of  the  council,  does  not  apply  to  a 
case  of  removal  where  such  concurrence  is  not  required. 


256  TERRITORY  EX  REL.  FISK  v.  RODGERS.    [Aug.  T., 

No  finding  of  facts  is  necessary  where  a  judgment  is  ren- 
dered on  the  pleadings.  Taylor  v.  Palmer,  31  Cal.  242. 
In  this  case  no  facts,  but  legal  conclusions  were  put  in  issue. 

Rule  15  of  the  supreme  court,  and  section  16  of  the  civil 
practice  act,  do  not  apply  to  this  case.  The  people,  who 
are  parties,  are  neither  dead  or  disabled,  nor  have  they 
sold  out. 

Appellant's  denials  are  wholly  of  conclusions  of  law. 
Such  denials  raise  no  issue  of  fact.  Wedderspoon  v.  Rog- 
ers, 32  Cal.  569  ;  Curtis  v.  Richards,  9  id.  33 ;  Busenius 
v.  Coffee,  14  id.  91 ;  Frisch  v.  Caler,  21  id.  71 ;  Nelson  v. 
Murray,  23  id.  338 ;  Richardson  v.  Smith,  29  id.  529. 

SYMES,  J.  This  was  an  action  brought  under  title  7,  chap- 
ter 5  of  the  Civil  Code,  for  the  usurpation  of  the  office 
of  territorial  auditor,  by  the  people  of  the  Territory  upon 
the  relation  of  James  L.  Fisk,  and  James  L.  Fisk,  who 
claimed  that  he  was  entitled  to  the  possession  and  emolu- 
ments of  said  office,  against  W.  H.  Rodgers,  the  present 
incumbent. 

The  complaint  alleged  in  substance  that  plaintiff  Fisk  had 
been  duly  appointed  and  commissioned  by  the  governor  to 
the  office  of  territorial  auditor  ;  that  plaintiff  had  taken  the 
oath  and  filed  the  proper  official  bond ;  that  he  had 
demanded  possession  of  the  said  office  from  said  defendant, 
but  defendant  refused  to  give  up  possession  and  wrongfully 
and  unlawfully  held  and  intruded  himself  into  the  said 
office.  Further,  that  defendant  claimed  said  office  by  virtue 
of  an  election  by  the  legislative  assembly  of  the  Territory, 
which  was  illegal ;  and  ask  judgment  for  possession  of  the 
office. 

Defendant  answered  and  admitted  being  in  possession  of 
the  office  ;  denied  that  plaintiff  was  lawfully  appointed  or 
entitled  to  the  possession  of  the  said  office ;  that  he  had 
been  duly  elected  and  appointed  to  the  said  office  by  the 
legislative  assembly  and  the  governor  in  December,  1867;  and 
that  he  was  duly  elected  by  the  qualified  voters  of  the  Terri- 
tory to  said  office  in  August,  1869,  in  accordance  with  the 


1870.]        TERRITORY  EX  REL.  FISK  v.  RODQEES.  257 

law  of  the  Territory,  and  was  entitled  to  hold  and  enjoy  the 
emoluments  of  the  same. 

The  plaintiff  moved  for  judgment  on  the  pleadings,  which 
motion  was  sustained  by  the  court,  and  judgment  rendered 
that  defendant  was  not  entitled  to  have  and  enjoy  posses- 
sion of  the  said  office,  and  that  the  plaintiff  had  been  duly 
appointed  to  and  was  entitled  to  the  possession  and  emolu- 
ments of  the  said  office,  and  ordering  the  defendant  ousted 
from,  and  the  plaintiff  put  into  the  possession  of,  said  office. 
From  this  judgment  the  defendant  appealed  to  this  court. 

There  was  no  error  in  the  court  below  proceeding  to  con- 
sider the  case  and  rendering  judgment  on  the  complaint  and 
answer.  The  answer  raises  no  issue  of  fact ;  it  admits  the 
allegations  of  the  complaint,  or  denies  legally  and  lawfully 
the  rights  set  up  in  the  complaint,  such  denials  being  preg- 
nant with  the  admission  of  all  the  facts  claimed,  only  deny- 
ing the  legal  conclusions  resulting  therefrom. 

The  decision  of  this  case  involves  the  consideration  of  two 
distinct  propositions,  first,  whether  the  defendant,  the  incum- 
bent, is  lawfully  entitled  to  hold  and  enjoy  the  office,  or  is 
an  intruder  into  the  same  ;  and  second,  whether  the  plain- 
tiff Fisk  has  been  legally  appointed  to  said  office,  and  is 
entitled  to  the  possession  and  enjoyment  of  the  same. 

The  defendant,  as  appears  by  the  pleadings,  took  posses- 
sion of  the  said  office  on  the  29th  of  November,  1867,  by 
virtue  of  an  election  by  the  two  houses  of  the  legislative 
assembly  of  the  Territory  of  Montana  and  the  commission 
of  the  governor,  which  election  and  commission  was  in 
accordance  with  an  act  of  the  legislative  assembly,  approved 
November  16,  1867.  That  defendant  was  so  elected  and 
appointed  to  the  said  office  to  hold  the  same  until  the 
general  election  on  the  first  Monday  in  August,  1869  ;  and 
that  at  said  general  election  he  was  elected  and  chosen  by  a 
majority  of  the  qualified  electors  of  the  territory,  and  took 
the  proper  oath  of  office,  and  offered  to  file  an  official  bond, 
but  the  secretary  of  the  Territory  refused  to  recognize  the 
said  election  as  legal  and  refused  to  file  the  bond,  and  the, 
governor  refused  to  issue  a  commission  under  said  election 
VOL.  I.  — r>: 


268  TERRITORY  EX  BEL.  FISK  v.  RODGERS.     [Aug.  Tv 

The  election  and  appointment  by  the  legislative  assembly 
and  governor  in  November,  1867,  and  the  election  by  the 
people  on  the  first  Monday  of  August,  1869,  was  in  accord- 
ance with  the  provisions  of  the  said  act  of  the  legislative 
assembly,  and  the  question  presents  itself,  is  the  said  act  in 
contravention  of  the  provisions  of  the  act  of  congress,  enti- 
tled "  An  act  to  provide  a  temporary  government  for  the 
Territory  of  Montana,"  known  as  the  "organic  act,"  and 
therefore  null  and  void. 

Section  7  of  said  organic  act  provides  that  all  town- 
ship, district  and  county  officers  not  therein  otherwise  pro- 
vided for  shall  be  appointed  or  elected,  as  the  case  may  be, 
in  such  manner  as  shall  be  provided  by  the  governor  and 
legislative  assembly  ;  and  that  the  governor  shall  nominate 
and,  by  and  with  the  advice  and  consent  of  the  legislative 
council,  appoint  all  officers  not  therein  otherwise  provided 
for.  The  office  of  territorial  auditor  is  not  a  township,  dis- 
trict, or  county  office,  but  is  a  territorial  office,  and  is, 
consequently,  not  to  be  filled  in  such  a  manner  as  the  gov- 
ernor and  legislative  assembly  may  provide  ;  but  is  an  office 
not  in  the  organic  act  otherwise  provided  for,  and  must  be 
filled  by  the  governor  nominating  and,  by  and  with  the 
advice  and  consent  of  the  legislative  council,  appointing  a 
person  to  hold  said  office. 

So  much  of  the  act  of  the  legislative  assembly,  approved 
November  16,  1867,  as  provided  for  the  election  by  the  legis- 
islative  assembly,  or  by  the  election  of  the  Territory,  of 
territorial  auditor  is  in  contravention  of  the  organic  act  and 
of  no  force  ;  and  the  defendant  Rodgers  claiming  to  hold 
and  exercise  the  duties  of  said  office  only  by  virtue  of  the 
provisions  of  said  act  of  the  legislative  assembly  has  no 
lawful  right  to  the  possession  and  emoluments  of  said  office; 
and  the  district  court  below  did  not  err  in  adjudging  that 
said  Rodgers  was  not  entitled  to  the  office  and  ordering  that 
he  be  ousted  therefrom. 

2.  The  plaintiff  and  relator  Fisk  claims  the  possession 
and  emoluments  of  said  office  by  virtue  of  a  commission 
from  the  governor  of  the  Territory,  dated  August  28, 


1870.]          TERRITORY  EX-TCEL.  FISK  ».  RODGERS.  259 

1869,  appointing  him  to  be  territorial  auditor  until  the  next 
session  of  the  legislative  council  of  the  Territory.  Has  the 
governor  the  power  of  appointment  to  nil  such  office,  or  are 
his  powers  limited  by  the  language  of  the  organic  act,  before 
quoted,  to  simply  the  power  of  nominating  and  appointing 
only,  after  lie  shall  have  received  the  advice  and  consent  of 
the  legislative  council.  It  is  stated  in  the  complaint  that 
the  plaintiff  was  nominated  arid  appointed  to  the  said  office, 
which  nomination  would  be  subject  to  the  advice  and  con- 
sent of  the  legislative  council ;  and  that  he  gave  bond  and 
took  the  oath  prescribed  by  law,  whereupon  a  commission 
was  issued  appointing  him.  The  nomination  only  could 
give  the  plaintiff  no  right  to  the  possession  of  the  offic«- 
until  the  legislative  council  had  confirmed  the  nomination, 
and  he  was  commissioned  and  appointed  in  accordance  with 
the  advice  and  consent  of  the  legislative  council  or  con- 
firmation. 

The  word  "nominate "  means  to  recommend  for  confirma- 
tion. Paschal' s  Annotated  Const.  175,  note  179  ;  Ma/rbury 
v.  Madison,  I  Cr.  137.  If  the  plaintiff  has  any  right,  it  is 
by  virtue  of  his  appointment  and  commission. 

The  language  of  the  organic  act,  conferring  the  power  of 
appointment  on  the  governor,  is  the  same  as  that  portion 
of  section  2,  article  2  of  the  constitution  of  the  United 
States,  giving  the  president  the  power  of  nominating  and 
appointing  officers.  But  there  is  another  clause  in  section 
2,  article  2,  which  expressly  empowers  the  president  to  fill 
all  vacancies  which  may  happen  during  the  recess  of  the 
senate,  by  granting  commissions  which  shall  expire  at  the 
end  of  the  next  session.  There  is  no  such  express  power 
given  to  the  governor  to  fill  vacancies  in  our  organic  act. 
The  court  is  of  opinion  that  there  was  a  vacancy  existing 
when  the  governor  issued  the  commission  to  the  plaintiff, 
Pisk  ;  but  it  has  been  held  that  the  power  of  appointment 
carries  with  it  the  power  of  removal.  Stanbery's  Opinions, 
18,  19,  and  authorities  cited. 

The  legislative  assembly  passed  an  act  in  1865,  giving  the 
governor  the  power  to  fill  vacancies  which  should  happen 


260  TERRITORY  EX  REL.  FISK  x>.  RODGERS.     [Aug.  T., 

during  the  recess  of  the  legislature,  and  in  the  act  approved 
November  16,  1867,  making  the  office  of  auditor  and  others 
an  elective  one  by  the  people,  the  governor  is  empowered  to 
fill  vacancies  by  appointment  until  the  next  general  election. 
But,  in  an  act  approved  December  31,  1868,  it  is  provided, 
that  vacancies  happening  shall  be  filled  until  the  next  gene- 
ral election  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  legislative  council,  and  repeals  the  former 
acts  giving  the  governor,  alone,  the  power  to  fill  vacancies. 

If  there  is  no  express  law  or  authority  conferring  on  the 
governor  of  the  Territory  the  power  to  fill  vacancies  by 
appointment,  or  any  appointing  power,  as  distinguished 
from  the  power  to  recommend,  select  or  nominate,  and  ap- 
point only  after  having  obtained  the  advice  and  consent  of 
the  legislative  council,  has  the  governor  the  inherent  execu- 
tive or  incidental  power  \  There  are  no  decisions  direct  upon 
this  question  reported  in  the  supreme  court  of  the  United 
States,  because  the  third  clause  of  the  second  section, 
second  article  of  the  constitution,  expressly  confers  the 
power  of  appointment  to  fill  vacancies  on  the  president. 
And  we  have  at  hand  no  State  constitution  similar  to  our 
organic  act,  and,  therefore,  no  decisions  to  enlighten  us. 
We  might  be  led  to  the  conclusion,  that  the  framers  of  the 
constitution  thought  that  provision  of  the  constitution,  sec- 
tion 2,  article  2,  which  is  the  same  as  our  organic  act,  did 
not  confer  on  the  president  the  power  to  appoint  to  vacan- 
cies, without  the  consent  of  the  senate,  or  they  would  not 
have  inserted  the  third  clause,  expressly  conferring  the 
power,  still,  we  may  gather  from  the  dictum  of  judges  and 
the  opinion  of  attorneys-general,  that  it  would  be  held  that 
the  president,  under  some  circumstances,  would  have  the 
inherent  executive  power  to  appoint  officers,  under  that  pro- 
vision of  the  constitution,  making  it  his  duty  to  see  the  laws 
faithfully  executed. 

It  is  contended  by  counsel  for  relator  and  plaintiff  Fisk, 
that  the  governor  had  the  power  and  authority  to  appoint 
under  that  clause  in  the  organic  act,  making  it  his  duty  to 
see  the  laws  faithfully  executed.  We  may  be  of  the 


187C.]         TERRITORY  EX  REL.  FISK  v.  RODGERS.  26] 

opinion,  that  the  president  would  have  the  power  outside 
of  the  third  clause,  section  2,  article  2,  of  the  constitution, 
to  appoint,  during  the  recess  of  the  senate,  to  fill  a  vacancy 
occurring  in  any  of  the  executive  offices  necessary  to  carry 
on  the  machinery  of  the  executive  department  of  the  gov- 
ernment. A  vacancy  might  occur  in  the  office  of  secretary 
of  state,  or  war,  whereby  the  government  would  be  seriously 
embarrassed  and  injured,  if  the  president  did  not  appoint 
persons  to  carry  on  that  part  of  the  executive  department, 
and  his  power  to  do  so  might  be  maintained  under  the  doc- 
trine of  ex  necessitate.  We  might  reason  from  analogy, 
that,  if  a  vacancy  should  occur  in  the  office  of  secretary  of 
the  Territory  during  the  recess  of  the  legislature,  and  the 
law  as  to  filling  the  office  was  the  same  as  that  provid- 
ing for  filling  the  office  in  question  herein,  the  governor 
would  have  the  inherent  or  incidental  executive  power  to 
appoint  to  the  vacancy,  because  the  duties  pertaining  to  the 
secretary's  office  must  be  performed,  in  order  to  carry  on 
the  machinery  of  the  executive  department  of  the  govern- 
ment of  the  Territory.  But  the  office  of  auditor  bears  no 
such  relation  to  the  executive  department  of  the  Territory. 
The  office  of  auditor  is  not  created  or  referred  to  in  the 
organic  act  creating  the  territorial  government,  in  any  of 
its  provisions  relating  to  any  of  its  departments  or  the  offi- 
cers thereof.  It  is  an  office  created  by  the  legislature  of  the 
Territory.  The  legislative  assembly  can  abolish  the  office 
when  it  chooses,  and  the  executive  and  other  departments 
of  the  government  of  the  Territory  can  go  on  the  same. 
The  auditor  has  nothing  to  do  with  the  financial  part  of  the 
territorial  government  as  regulated  by  congress.  He  does 
not  settle  or  audit  the  accounts  or  salaries  of  the  officers  of 
the  executive,  legislative  or  judicial  department  of  the  Ter- 
ritory, so  far  as  they  are  paid  by  the  general  government. 
Being  an  office  created  by  the  legislature  of  the  Territory, 
the  appointment  to  which  comes  under  that  clause  of  section 
7  of  the  organic  act,  of  officers  not  therein  otherwise  pro- 
vided for,  and  which  the  governor  is  empowered  to  nomi- 
nate and.  by  and  with  the  advice  and  consent  of  the  legis- 


262  TERRITORY  EX  REL.  FISK  v.  RODGERS.     [Aug.  T., 

lative  council,  appoint,  we  are  of  opinion  that  the  commis- 
sion given  by  the  governor  to  the  plaintiff,  Fisk,  purporting 
to  appoint  him  to  the  office  of  territorial  auditor,  without 
the  advice  and  consent  of  the  legislative  council,  does  not 
confer  the  right  to  the  possession  and  emoluments  of  the 
*aid  office  on  said  Fisk. 

In  reply  to  the  queries  of  counsel,  that  if  the  governor 
has  not  the  power  of  appointment  to  fill  vacancies  during 
the  recess  of  the  legislature,  who  has,  we  would  say  that 
when  the  legislative  assembly  create  an  office,  the  appoint- 
ment to  which  under  the  organic  act  they  have  the  power 
to  control  by  their  advice  and  consent,  the  governor  having 
only  the  right  or  authority  of  selecting  or  nominating,  and 
they  enact  that  a  vacancy  in  the  office  shall  only  be  filled 
by  the  governor  and  legislative  council,  it  is  not  the  province 
of  the  court  to  legislate  for  a  contingency,  or  direct  how  the 
proper  authorities  should  proceed. 

So  much  of  the  judgment  of  the  court  below  as  adjudges 
that  the  defendant  Rodgers  is  not  entitled  to  hold  said  office, 
and  that  he  be  ousted  from  the  same,  is  affirmed,  and  that 
part  adjudging  the  respondent  Fisk  entitled  to  the  posses 
sion  and  enjoyment  of  the  said  office,  is  reversed. 

Judgment  affirmed  in  part  and  reversed  in  part. 


1870.]  MASON  v.  GEKMAINE.  263 


MASON  et  al.,  respondents,  «.  GERMAINE  et  al.,  appellants. 

PKACTICK  —  default  — judgment  after  appearance.  A  default  cannot  be  entered 
against  a  defendant,  after  he  appears,  but  judgment  can  be  rendered  against 
him  for  want  of  an  answer. 

PRACTICE — intermediate  orders  reviewed.  On  appeal  from  a  judgment,  this 
court  will  review  intermediate  orders  that  affect  the  judgment. 

Pi:, \CTCIE  —  suits  consolidated.  Suits  cannot  be  consolidated,  unless  the  parties 
are.  the  same  and  the  subject-matter  can  be  joined. 

PRACTICE  —  mechanics'  liens  —  one  trial  —  one  sale.  The  rights  of  all  the  parties 
to  an  action,  that  claim  liens  upon  the  same  premises  under  the  act  "secur- 
ing liens  to  mechanics  and  others,"  must  be  adjudicated  in  one  proceeding, 
utid  the  several  liens  of  the  parties  should  be  satisfied  out  of  the  proceeds 
of  the  same  sale  of  the  incumbered  property. 

PKACTICK  —  questions  of  fact  not  considered  without  the  statement.  On  appeal 
from  aii  order  refusing  a  new  trial,  questions  of  fact  will  not  be  considered, 
unless  all  the  evidence  is  brought  before  the  court  in  the  statement. 

PRACTICE  —  errors  not  reviewed.  Errors  of  law  that  are  immaterial  or  not  prop- 
erly specified  will  not  be  reviewed. 

PUACTICE  —  stipulation  not  in  the  statement.  The  stipulation  of  attorneys,  that 
is  not  embodied  in  the  statement,  will  be  disregarded  on  appeal. 

PRACTICE  —  presumption  in  absence  of  evidence.  This  court  will  presume,  in  the 
absence  of  the  evidence,  that  the  court  below  found  the  facts  correctly. 

MECHANIC'S  LIEN'S  —  excessive  claims — fraud.  A  party  who,  without  any 
fraudulent  intent,  claims  in  his  complaint  and  notice  of  lien  a  larger 
amount  than  that  found  by  the  court,  does  not  destroy  his  lieu  for  the 
amount  actually  due. 

ASSIGNMENT  OF  MECHANIC'S  LIEN.  The  lien  of  a  mechanic  for  labor  that  has 
been  performed,  follows  the  assignment  of  the  account  of  the  labor. 

PRACTICE — process,  if  court  makes  one  a  defendant.  No  process  is  required 
when  the  court  orders  that  a  person  be  made  a  defendant,  and  all  the  par- 
ties to  the  action  are  charged  with  notice  thereof. 

STATUTORY  CONSTRUCTION  —  statute  prefers  liens  of  mechanics.  The  act  passed 
December  30,  1S64,  "  securing  liens  to  mechanics  and  others,"  gives  pref- 
erence to  the  liens  of  mechanics  and  material  men  over  any  incumbrance 
made  after  the  building  is  commenced.  WARREN,  C.  J.,  dissenting. 

Appeal  from  tJte  Third  District,  Lewis  and  Clarke  County. 

Tins  action  was  tried  by  SYMES,  J.,  at  the  April  term. 
1870,  and  a  decree  was  made  in  favor  of  Mason  et  al..  plain 
titt's.  The  facts  appear  in  the  opinion. 

WOOLFOLK  &  TOOLE,  for  appellant,  Germaine. 

The  court  erred  in  refusing  to  consolidate  and  require  all 
the  parties  to  litigate  their  rights  in  one  action.  Acts  186.\ 
$§  11,  12,  13. 


264  MASON    V.  GrERMAINE.  [Aug.  '^>. 

The  allegations  of  the  complaint  will  not  support  the 
prayer  thereof.  Civ.  Prac.  Act,  §  39 ;  1  Edw.  Ch.  654  ;  1 
U.  S.  Eq.  Dig.  278,  280,  281,  292. 

The  statement  of  facts  agreed  upon  was  in  the  nature  of 
a  special  finding.  The  answer  denies  the  contract  sued  on, 
and  the  statement  will  not  support  the  contract.  The  appel- 
lant could  set  up  the  true  contract  in  his  answer  to  defeat 
the  respondents.  MurpJiy  v.  Napa  County,  20  Cal.  497. 

The  agreed  statement  would  only  support  a  personal 
judgment,  if  any.  A  contract  is  necessary  to  support  a 
lien.  HougJiton  v.  Blake,  5  Cal.  240  ;  Brewster  v.  Hartley, 
37  id.  15  ;  Walker  v.  Hauss-ffijo,  I  id.  183. 

The  mechanic's  lien  law  is  in  derogation  of  the  common 
law,  and  a  party  claiming  rights  under  it  must  show  a  strict 
compliance.  Respondents  never  complied  with  sixth  sec- 
tion of  the  Acts  of  1865,  page  333. 

There  was  no  evidence  to  support  the  contract.  Appel- 
lant never  agreed  that  judgment  should  be  rendered  against 
him.  The  variance  between  the  findings,  evidence  and  de- 
cree is  fatal.  Respondents'  contracts,  as  set  up  in  their  com- 
plaint, will  not  support  liens.  No  definite  time  for  doing 
the  work  is  alleged.  Houck  on  Liens,  §  135.  The  findings 
do  not  show  that  the  contracts  were  made  and  services  ren- 
dered upon  the  property  described. 

McKillican  had  no  right  to  assign  to  Bilsland.  Houck  on 
Liens,  §  199. 

CriuMASERO  &  CHAD  WICK,  for  appellant,  Davis. 

The  decree  of  the  court  below  was  erroneous.  Bilsland 
commenced  work  on  July  16, 1869,  and  completed  on  Novem- 
ber 10,  1861).  The  mortgage  of  Davis  was  made  and  re- 
corded on  June  9,  1869.  The  linn  of  a  mechanic  can  only 
date  from  the  time  he  commenced  work.  In  Missouri,  under 
a  similar  statute,  the  lien  begins  when  the  first  work  is  per- 
formed. Dubois*  Adm'rv.  Wttsorf  s  Trustees,  21  Mo.  213. 
No  authorities  are  cited  by  the  court  to  sustain  its  ruling. 
Such  a  construction  is  unconstitutional,  as  impairing  the 
obligation  of  contracts  and  interfering  with  vested  rights. 


1870.]  MASON  v.  GERMAINE.  26E 

Houck  on  Liens,  §§  50,  54.  In  Missouri,  the  court  has  re- 
ceded from  its  position  in  21st  Missouri.  39  Mo.  170. 

In  Iowa,  the  court  held  that  the  lien  attaches  at  the  com- 
mencement of  the  work.  Houck  on  Liens,  §  142. 

The  lien  law  must  be  strictly  construed.  Brady  v.  An- 
derson, 24  111.  112 ;  Philip  v.  Stone,  25  id.  80 ;  Houck  on 
Liens,  §  70. 

The  decree  was  rendered  for  more  than  was  dne  under 
any  circumstances.  The  assignment  of  the  indebtedness  by 
a  mechanic  could  not  convey  the  right  to  a  lien.  Houck  on 
Liens,  §  198. 

There  is  nothing  in  the  evidence  or  findings  of  the  court 
which  justifies  the  decree  in  foreclosing  Davis  from  all 
equity  of  redemption.  The  finding  is  that  respondent,  Bils- 
land,  is  entitled  to  a  lien,  but  not  that  such  lien  is  prior  to 
the  mortgage  of  Davis. 

SHOBER  &  LOWRY,  W.  F.  SANDERS  and  J.  A.  JOHNSTON, 

for  respondents. 

Mechanic's  liens  attach  from  the  time  of  the  commence- 
ment of  the  building  and  have  priority  over  all  incum- 
brances  made  subsequently.  Acts  1865,  334,  §  8 ;  Dubois* 
Adirfr  v.  Wilson's  Trustees,  21  Mo.  214  ;  I  Hill.  Real  Prop. 
492,  §  40  ;  Acts  1867,  80  ;  Houck  on  Liens,  163  ;  Jones  v. 
Swan,  21  Iowa,  183  ;  Cogel  v.  Mickow,  11  Minn.  475. 

A  mortgagee  must  examine  the  premises  and  see  that  they 
are  free  from  the  liens  of  laborers.  Houck  on  Liens,  §  50. 

It  is  not  necessary  to  state  with  whom  the  contract  was 
made.  Hauptman  v.  Catlin,  20  N.  Y.  247. 

Courts  favor  mechanics  and  construe  the  law  liberally  in 
their  favor.  Houck  on  Liens,  §§  66-68. 

Every  fact  not  found  will  he  presumed  to  be  in  accordance 
with  the  judgment.  Ennnal  v.  Webb,  36  Cal.  197.  The 
facts  found  are  sutlicient  to  sustain  the  judgment. 

The  denials  of  appellants   respecting  the  liens  are  worth- 
less, because  they  deny  conclusions  of  law.      Wedderspoon 
v.  Rogers,  32  Cal.  5(59  ;  People  v.  Supervisors,  27  id.  655  : 
Landers  v.  Bolton,  26  id.  416. 
VOL.  I. —34. 


266  MASON  v.  GERMAINE.  [Aug.  Tv 

WARREN,  C.  J.  On  the  25th  day  of  November,  A.  D. 
18G9,  the  respondents  filed  their  complaint  in  the  district 
court  of  the  third  judicial  district  in  and  for  Lewis  and 
Clarke  county,  to  enforce  a  lien  for  work  done  and  materials 
furnished  by  plaintiffs  upon  and  for  a  certain  building 
erected  upon  certain  lots  situated  in  the  town  of  Helena, 
described  in  the  complaint,  under  a  contract  with  the  owner, 
G.  Jules  Germaine,  one  of  the  defendants.  The  other  defend- 
ants are  made  parties  to  the  proceeding  upon  the  ground  of 
interest  in  the  property  sought  to  be  charged,  claimed  by 
them  respectively,  which  is  alleged  to  have  accrued  subse- 
quent to  plaintiffs'  lien.  It  does  not  appear  that  summons 
issued,  but  defendants  Davis  and  Germaine  answered  sepa- 
rately, and  the  court  finds  in  the  judgment  rendered  that 
all  the  defendants  except  Germaine,  Davis,  Dahler  and 
Wyttenbach  appeared  to  the  action,  waived  service  of  sum- 
mons and  that  default  was  regularly  entered  against  them 
respectively.  After  appearance  of  a  defendant  in  an  action 
default  cannot  be  entered  against  him,  but  judgment  can  be 
rendered  by  nil  dicit  or  for  want  of  answer,  and  such  is 
substantially  the  course  pursued  in  this  case. 

On  the  same  day,  November  25,  1869,  John  Bilsland,  one 
of  the  defendants  in  this  suit,  filed  his  complaint  in  the  same 
court,  to  enforce  a  mechanic's  lien  upon  the  same  building 
and  lots,  making  the  plaintiffs  in  this  suit,  together  with  his 
co-defendants  herein,  parties  defendant  in  that  proceeding, 
and  on  the  same  day  defendants  Clark,  Conrad  and  Curtin, 
commenced  a  proceeding,  in  the  same  court,  for  the  purpose 
of  enforcing  a  lien  for  materials  furnished  for  the  same 
building,  and  in  which  the  same  parties  are  impleaded. 

On  November  27,  186y  vv  illiam  P.  Wilder  and  John 
Slirnely,  D.  B.  Dressley,  Samuel  Davenport,  E.  L.  Curry, 
respectively;  and  on  November  29, 1869,  Barnes  and  Arnold, 
as  partners ;  and  on  December  14,  1869,  R.  S.  Hale  ;  and 
on  February  10, 1870,  Benjamin  Daily  ;  and  on  February  12, 
1870,  D.  B.  McKillican,  each  being  a  defendant  in  this  suit, 
separately  commenced  a  suit  to  enforce  their  several  liens 
against  the  same  property,  and  impleading  the  parties  to 


1870.J  MAHOX  /•.  GKH.MAINK.  267 

this  suit,  in  each  proceeding.  Afterward  such  proceedings 
>vere  had  in  each  one  of  said  suits,  that  judgment  was  ren- 
dered in  favor  of  the  respective  plaintiffs,  and  in  each  case 
a  separate  decree  of  sale  of  the  property  was  entered  to 
satisfy  the  lien  found. 

In  each  one  of  these  several  proceedings  defendant  Ger- 
niaine  entered  a  motion  for  an  order  to  consolidate  these  ac- 
tions, and  also  to  require  the  plaintiffs  therein  to  litigate  their 
respective  claims  in  one  action,  arid  that  all  matters  adjudged 
between  the  parties  should  be  embraced  in  one  decree. 
These  motions  were  each  overruled  by  the  court. 

Upon  appeal  from  a  judgment  this  court  will  review  inter- 
mediate orders  affecting  the  judgment,  and  we  will  first 
Consider  the  order  overruling  these  motions,  as  affecting  the 
question  of  costs,  and  the  rights  of  the  parties  appealing. 

A  consolidation  of  suits  is  only  ordered  where  the  parties, 
plaintiff  and  defendant,  are  the  same  in  each,  and  the  sub- 
ject-matter such  as  may  be  joined,  so  that  this  was  not 
properly  a  question  of  consolidation  of  the  suits.  The 
practice  and  proceedings,  however,  under  the  act  in  ques- 
tion are  the  same  as  in  other  civil  actions.  The  remedies 
under  it  are  two-fold  —  an  ordinary  judgment,  and,  in  the 
event  no  sufficient  property  be  found,  enforcement  of  the 
1  ien  established  by  sale  of  the  property  charged.  As  between 
themselves  the  several  lienholders  take  priority  in  'the  order 
of  filing  their  accounts  and  notices  of  lien  with  the  county 
recorder. 

Where  separate  suits  are  commenced,  the  plaintiffs  in 
which  are  not  united  in  interest,  and  several  judgments  are 
sought,  joinder  of  their  actions  would  be  improper,  but  in 
so  far  as  the  statute  provides  for  enforcement  of  the  liens 
created  by  it  against  the  same  property  in  favor  of  several 
lienholders,  the;  action  under  it  is  in  the  nature  of  an  equi- 
table proceeding,  and  should  be  governed  by  the  rules  per- 
taining to  such. 

It  is  not  necessary  to  determine  at  this  time  whether  in  a 
suit  instituted  under  the  act  a  party  may  recover  a  judgment 
at  law  for  the  amount  found  due  to  him.  notwithstanding 


268  MASON  «.  GEKMAINE.  [Aug.  TN 

his  failure  to  establish  a  lien  therefor.  So  far  as  the  liens 
are  concerned,  the  several  lienholders  are  to  be  regarded  as 
incumbrancers  of  the  same  property  sought  to  be  charged, 
and  their  respective  rights  adjudicated  as  such.  The  "act 
securing  liens  to  mechanics  and  others,"  provides  that 
parties  to  the  contract  shall,  and  all  others  interested  may, 
be  made  parties,  but  at  the  same  time  the  practice  in  other 
civil  cases  is  made  applicable  under  it,  and,  under  our  prac- 
tice, a  defendant  is  required  to  answer  the  complaint,  spe- 
cifically, and  also  to  set  up  as  a  counter-claim  any  matter 
which  entitles  him  to  relief,  either  against  the  plaintiff  or 
any  co-defendant.  It  is  not  permitted  him,  after  the  court 
has  acquired  jurisdiction  over  him  in  a  cause  either  by  ser 
vice  of  summons  or  by  voluntary  appearance,  to  suffer  a 
default  or  fail  to  answer,  and  then  institute  a  separate 
action  in  which  the  same  subject-matter  and  parties  are  in- 
volved. While  different  lienholders  need  not  necessarily 
be  made  defendants  unless  it  is  sought  to  bind  them  by  the 
decree,  yet  if  made  defendants,  as  in  this  case,  their  rights 
must  be  adjudicated  in  one  proceeding  so  far  as  their  several 
liens  are  concerned. 

Xone  of  the  parties  in  these  causes  have  appealed  to  this 
count  except  Grermaine,  who  appeals  separately  in  each,  and 
Davis,  who  appeals  in  the  proceeding  in  which  Bilsland  is 
plaintiff  below.  There  is  manifest  injury  sustained  by 
these  appellants  in  permitting  each  one  of  the  defendants 
in  this  cause  to  maintain  a  separate  action  for  the  enforce- 
ment of  his  lien,  and  in  each  entering  a  decree  of  sale  of 
the  property,  when,  under  our  practice  act  —  as  well  as 
under  the  established  chancery  practice  —  the  rights  of  all 
should  have  been  determined  in  one  action,  and  the  several 
claims  established  as  liens,  ordered  satisfied  out  of  the  pro- 
ceeds of  one,  and  the  same  sale  of  the  property  charged. 

By  the  course  pursued  the  appellants  are  not  only 
harrassed  by  multiplicity  of  suits,  and  subjected  to  accu- 
mulation of  costs,  but  suffer  from  possible  sacrifice  of  the 
property,  in  consequence  of  the  twelve  sales  ordered.  It 
may  be  remarked,  also,  that  the  several  lienholders,  although 


1870.]  MASON  v.  GEUMAINE.  269 

not  appealing,  sustain  injury  in  consequence  of  the  pro- 
ceeding. It  is  claimed  that  each  has  the  right  to  redeem 
from  the  preceding  sale  or  sales  ordered,  but  this  is  not 
adequate  protection  of  his  rights,  and  may  be  substantially 
a  denial  of  them.  Mechanics  and  material-men  are  not 
always  men  of  capital ;  and  to  require  junior  lien  holders 
to  pay  off  all  prior  liens,  in  order  to  protect  their  own  liens, 
defeats  the  purpose  of  the  act. 

We  hold,  therefore,  that  the  court  erred  in  overruling  the 
motion  of  defendant  Germaine,  to  require  the  defendants  to 
submit  their  respective  rights  for  adjudication  in  one  action  ; 
but  we  feel  authorized,  as  an  appellate  court,  to  correct  this 
error,  and  to  treat  the  several  complaints  tiled  as  counter- 
claims, set  up  by  them  respectively  ;  and  since  the  motion 
of  Germaine  was  filed  in  each  case,  and  since  this  action,  in 
which  Mason  and  Duke  are  plaintiffs,  is  the  first  cause  on 
the  calendar  of  this  court,  commenced  on  November  25, 
1869,  in  the  court  below,  we  will  regard  said  complaints  as 
counter-claims  in  this  cause,  and  will  review  the  transcripts 
in  the  order  in  which  they  stand  on  this  calendar,  and  hav- 
ing reference,  also,  to  the  date  of  filing  below. 

Before  considering  the  questions  raised  in  each  case  sep- 
arately, we  will  first  pass  upon  questions  applicable  to  all 
equally.  In  each  case  defendant  Germaine  appeals  from  the 
judgment  rendered,  and  from  the  order  overruling  his 
motion  for  a  new  trial.  This  he  may  do  ;  but,  upon  appeal 
from  a  judgment,  not  accompanied  by  a  statement,  this 
court  will  only  review  errors  of  law  appearing  on  the 
record  itself,  properly  specified.  Upon  a  motion  for  a  new 
trial  there  must  be,  in  every  instance,  either  a  statement, 
signed  by  the  attorneys  of  the  parties,  or  settled  and  certi- 
fied by  the  judge,  or  affidavits,  showing  the  errors  alleged. 
Xo  question  of  fact  will  be  considered  in  this  court,  unless 
all  the  evidence  relating  thereto  be  embodied  or  definitely 
referred  to  in  the  statement ;  nor  will  any  error  of  law  be 
regarded  unless  material,  and  properly  specified  in  the  state- 
ment. Mere  recitation  in  the  transcript  of  what  purport  to 
he  facts  or  stipulations  of  attorneys,  not  embodied  in  or 


"270  MASON  v.  G-EKMAINE.  [Aug.  T.> 

distinctly  identified  by  the  statement,  will  not  be  considered. 
In  this  case,  in  every  instance,  that  which  purports  to  be 
a  "statement"  is,  more  properly,  a  notice  of  a  motion  for  a 
new  trial  than  a  statement,  and,  in  no  instance,  is  the  evi- 
dence embodied  or  definitely  referred  to  ;  and,  hence,  it  will 
be  presumed  in  this  court  that  the  evidence  was  sufficient 
to  support  the  finding  of  facts  in  the  court  below,  and  we 
will  be  confined  to  examination  of  errors  in  law  appearing 
upon  the  record  and  properly  specified.  The  several  notices 
of  appeal  specify  that  the  respective  appeals  are  from  the 
"findings"  of  the  court  below,  as  well  as  from  the  judg- 
ments and  orders  overruling  the  motions  for  a  new  trial, 
and  we  will  remark  that  no  appeal  lies  from  the  "findings'" 
of  a  court  which  correspond  to  the  special  verdict  of  a  jury. 
The  "statement"  on  the  motion  for  a  new  trial,  in  each 
instance,  specifies  as  grounds  for  the  motion,  in  addition  to 
error  of  law  and  insufficiency  of  the  evidence,  "  irregularity 
in  tUe  proceedings  of  the  court."  The  "irregularity"' 
mentioned  in  the  statute  refers  to  irregularity  in  the  pro- 
ceedings, not  appearing  on  the  face  of  the  record,  and  must 
be  shown  by  affidavit.  The  "irregularities"  specified  in 
the  several  statements  are  not  of  this  character,  but  appear 
on  the  record  and  we  will  so  consider  them. 

In  the  case  under  consideration,  wherein  Mason  &  Duke 
are  plaintiffs,  the  first  error  of  law  specified  is  the  overruling 
of  the  demurrer  of  appellant,  Germaine,  to  the  complaint. 
The  demurrer  we  hold  to  have  been  properly  overruled,  as 
the  facts  stated  constitute  a  cause  of  action. 

The  order  overruling  the  motion  to  require  defendants  to 
litigate  their  respective  rights  in  this  proceeding  we  have 
already  considered,  and  the  error  assigned  in  rendering  the 
decree  of  course  depends  upon  the  determination  of  the 
other  questions  presented. 

The  second  ground  of  the  motion  for  a  new  trial  is.  "in- 
sufficiency of  the  evidence  to  support  the  findings  and  de- 
cree ;"  but.  as  we  have  already  stated,  all  the  evidence  not 
being  preserved  and  embodied  in  the  statement  settled,  wu 
must  presume  in  favor  of  the  judgment  below. 


1870.]  MASON  v.  GERMAINE.  271 

There  appears  in  the  transcript  a  stipulation  signed  by 
the  attorneys  of  the  respective  parties,  as  to  the  amount 
due  plaintiffs,  and  also  an  entry  reciting  the  examination 
of  witness  upon  certain  matters  and  the  allowance  of  $75  as 
damages  by  the  court  for  a  defective  range  and  flue,  but 
both  of  these,  neither  forming  a  part  of  the  record  nor 
being  embodied  in  a  statement,  will  be  disregarded. 

The  fact  that  the  complaint  and  notice  of  lien  claimed  as 
due  plaintiffs  a  larger  amount  than  that  found  by  the  court 
will  not  destroy  their  lien  for  the  amount  actually  due,  un- 
less there  be  a  fraudulent  intent  in  filing  the  same,  which 
must  be  proven  and  will  not  be  presumed. 

Upon  the  other  points  specified,  the  evidence  necessary 
to  sustain  them  not  being  preserved,  the  presumptions  are 
in  favor  of  the  judgment  below. 

The  court  finds  that  the  building  in  question  was  com- 
menced May  21,  1869  ;  that  thereafter  plaintiffs,  Mason  & 
Duke,  under  a  contract  with  the  owner,  defendant  Germaine, 
furnished  material  for  and  performed  labor  on  the  same,  and 
within  sixty  days  after  completion  of  said  contract,  and  on 
September  29,  1869,  at  2J  o'clock  P.  M.  of  said  day,  duly 
filed  their  notice  of  lien  and  account  in  the  county  clerk's 
office  of  said  Lewis  and  Clarke  county,  and  that  there  was 
due  plaintiffs  therefor  $5,215.46,  for  the  payment  of  which 
they  were  decreed  a  lien  on  the  property  described. 

In  the  case  of  JoJtn  Bilsland,  defendant  Germaine  ap- 
peals from  the  order  overruling  his  motion  for  a  new  trial ; 
and  defendant  Davis  appeals  from  the  decree  therein  ren- 
dered as  against  him.  Under  our  view,  the  appeal  of  Davis 
in  tins  case  is  as  effectual  as  if  he  had  appealed  in  all,  and 
his  rights  and  priority  as  mortgagee  can  be  determined 
fully,  and  we  will  consider  these  questions  hereafter. 

In  the  order  overruling  Germaine' s  motion  fora  new  trial, 
a  statement  has  been  referred  to  as  having  been  settled  by 
the  court,  although  none  is  certified  by  the  court.  Some 
evidence  is  set  out  in  the  transcript,  but  it  is  not  certified, 
nor  does  it  purport  to  be  all  the  evidence,  and  the  presump 
tions  favor  the  judgment  below.  The  error  assigned  in 


272  MASON  v.  GTEEMAIINE.  [Aug.  T., 

overruling  the  demurrer  to  the  complaint,  and  in  admitting 
proof  of  and  sustaining  the  assignment  of  McKillican's  lien 
to  plaintiff,  we  do  not  think  well  grounded.  While  a  lien 
is  inchoate,  and  before  the  completion  of  the  contract,  an 
assignment  of  the  claim  for  labor  or  materials  would  not 
carry  a  lien,  but  we  can  see  no  reason  in  law,  public  policy, 
or  principle,  why  a  lien,  when  perfected,  should  not  follow 
the  assignment  of  the  claim  on  which  it  is  founded.  The 
other  errors  assigned  we  have  considered. 

The  court  finds  the  plaintiff  entitled  to  a  lien  for  $2,064.75, 
and  that  he  duly  filed  his  notice  of  lien  for  $742.87|-  on 
November  17,  1869,  at  2  o'clock  p.  M.,  and  that  McKiilican 
at  the  same  time  duly  filed  notice  of  his  lien  for  $1,242.50. 
It  is  evident  the  court  allowed  interest  upon  these  claims, 
and  to  sustain  this  ruling  it  must  be  presumed  there  was 
evidence  before  it  that  the  amounts  were  vexatiously  with- 
held. In  the  following  cases  no  new  questions  are  raised. 
The  court  finds  Clark,  Conrad  and  Curtin  entitled  to  a  lien 
for  $627,  and  that  notice  of  lien  was  filed  November  22, 
1869  ;  that  D.  B.  Dressier  is  entitled  to  a  lien  for  $566.50, 
and  that  notice  of  lien  was  filed  November  17,  1869  ;  that 
William  P.  Wilder  is  entitled  to  a  lien  for  $1,505.75,  and 
that  notice  of  lien  was  filed  November  17,  1869,  by  himself, 
for  $771.78,  and  on  the  same  day  at  10  o'clock  A.  M.,  by  John 
A.  Murphy,  for  $734,  and  that  Murphy  duly  assigned  his 
claim  and  lien  therefor  to  Wilder ;  that  John  Slimely  is 
entitled  to  a  lien  for  $400,  and  filed  his  notice  of  lien  on 
November  17,  1869,  at  11£  o'clock  A.  M.  ;  that  Barnes  & 
Arnold  are  entitled  to  two  liens,  one  for  $5,277.69,  notice  of 
which  was  filed  November  17,  1869,  at  11£  A.  M.,  and  the 
other  for  $1,037.87,  notice  of  which  was  filed  November  11, 
1869.  In  this  case  the  court  made  John  Kinna  a  party  de- 
fendant on  his  own  motion.  Kinna  filed  his  answer  setting 
up  a  lien  on  the  property,  for  work  done  upon  and  materials 
furnished  for  the  same.  This  was  proper  practice.  The 
"objections"  of  appellant,  though  not  properly  presented. 
we  will  review. 

The  first  is,  that  appellant  was  not  served  with  process., 


1870.]  MASON  v.  GERMAINE.  273 

and  did  not  appear  in  such  proceeding.  The  order  made 
by  the  court,  making  Kinna  a  defendant  in  the  cause, 
charged  all  the  parties  with  notice,  and  no  process  was 
required.  Each  party,  however,  was  entitled  to  service  of 
a  copy  of  his  answer  and  counter-claim.  If  such  copy  was 
not  served,  and  appellant  desired  to  save  the  error,  it  should 
have  been  presented  by  affidavit  as  an  irregularity,  and  in 
the  absence  of  such  affidavit  it  will  be  presumed,  from  the 
finding  of  the  court,  that  a  copy  was  duly  served,  which 
gave  the  court  jurisdiction  of  the  subject-matter  of  the 
counter-claim.  The  court  finds  defendant,  John  Kinna, 
.-ill  it  led  to  a  lien  for  $1,139,  and  that  notice  of  lien  was  filed 
Xovember  30,  1869.  The  court  also  finds  that  Samuel 
Davenport  is  entitled  to  a  lien  for  $480,  and  that  he  filed 
notice  of  lien  November  17,  1869  ;  that  E.  L.  Curry  is  enti- 
tled to  a  lien  for  $888,  and  that  notice  was  filed  November 
17,  1869,  at  2  o'clock  p.  M.  ;  that  R.  S.  Hale  is  entitled  to  a 
lien  for  $470.35,  and  filed  notice  November  15,  1869  ;  that 
Benjamin  Daily  filed  notice  of  lien  for  $571.63,  on  January 
12,  1870,  and  is  entitled  to  a  lien  for  $590,  which  must 
include  interest  allowed  for  vexatious  withholding  ;  that  D. 
B.  McKillican  is  entitled  to  a  lien  for  $526,  and  filed  notice 
of  lien  December  8,  1869,  at  5  o'clock  P.  M. 

Upon  the  appeal  of  defendant  Davis,  the  only  question 
presented  relates  to  the  priority  of  the  mortgage  of  the 
property  in  question  executed  to  him  by  defendant  Gfer- 
Tiiaine,  over  the  several  liens  established.  Upon  this  point 
a  majority  of  this  court  are  of  opinion  that  the  statute 
expressly  gives  preference  to  liens  of  mechanics  and  mate- 
rial-men, over  any  incumbrances  made  subsequent  to  the 
commencement  of  the  building,  and  that  the  court  having 
found  the  fact  that  the  building  in  question  was  commenced 
before  the  execution  of  said  mortgage,  all  the  li«ns  found 
were  properly  preferred  to  it. 

This  cause  is  therefore  remanded  to  the  court  below,  and 

the  judgments  entered    in  favor  of  the  plaintiffs  and  the 

several  defendants  herein,  for  the  respective  amounts  found 

due  to  them,  are  affirmed,  and  the  costs  of  filing  the  several 

Vol.  I.— 35. 


274  MASON  «.  GERMAINE.  [Aug.  Tn 

complaints  as  answers  in  this  cause,  and  serving  copies  of 
the  same,  and  such  costs  as  were  necessarily  incurred  by 
them  in  defense  and  assertion  of  their  several  rights  in  this 
proceeding,  shall  be  ascertained  and  taxed  by  the  court ; 
and  it  is  ordered  and  adjudged  that  the  appellants,  Germaine 
and  Davis,  respectively,  recover  from  the  several  defendants 
herein,  the  costs  and  charges  incurred  by  them  in  answering 
and  defending  the  several  separate  proceedings  herein  speci- 
lied,  to  be  taxed  by  the  court.  It  is  further  ordered  that 
special  fieri  facias  executions  issue  in  favor  of  said  several 
parties,  for  the  said  amounts  for  which  said  judgments  were 
rendered  and  their  costs,  by  the  court,  if  such  executions 
have  not  heretofore  issued,  and  that,  if  no  sufficient  property 
of  defendant  Germaine  has  been  or  can  be  found  to  satisfy 
the  said  several  judgments  and  costs  taxed,  then  the 
residue  of  such  judgments,  or  any  of  them,  be  levied  out 
of  said  property  described  in  the  complaint,  and  that  said 
property,  or  so  much  thereof  as  may  be  necessary,  be  sold 
in  accordance  with  law  to  satisfy  the  same ;  and  that  out  of 
the  proceeds  of  such  sale  there  be  paid  the  costs  of  suit  and 
of  sale,  and  thereafter  the  said  judgments  be  paid  and  satis- 
fied to  the  extent  of  such  proceeds,  in  the  order  of  filing  the 
said  several  accounts  and  notices  of  lien  in  the  recorder's 
office,  as  found  by  the  court,  and  that  said  several  liens  so 
found  by  the  court  be  decreed  to  be  prior  and  paramount  to 
the  mortgage  executed  by  appellant  Germaine,  to  appellant 
Davis,  mentioned  and  set  out  in  the  answer  of  said  Davis, 
and  that  the  surplus,  if  any,  be  brought  into  court  to  await 
its  further  order. 

WARREN.  C.  J.,  dissenting.  I  respectfully  dissent  from  so 
much  of  the  foregoing  opinion  as  relates  to  the  question  of 
priority  of  Davis'  mortgage  over  the  several  liens  established. 
The  contracts  under  which  the  different  claimants  performed 
labor  or  furnished  material  were  entirely  separate  and  dis- 
tinct, one  from  the  other,  and  in  my  opinion  the  priority  of 
each  must  be  determined  by  the  date  at  which  he  himself 
commenced  to  fulfill  his  contract,  and  not  by  the  coin- 


1870."|  MASON  ?>.  (TERMAINK.  276 

mencement  of  some  other  work,  under  another  contract  by 
another  person  on  the  same  building.     The  statute  contem 
plates  the  completion  of  the  building  or  erection  under  on^ 
contract,  and  in  that  event  gives  preference  over  any  incum 
brance  made  subsequent  to  the  commencement  of  the  build- 
ing or  erection,  but  does  not  relate  to  several  contracts,  each 
of  which  is  made  with  reference  to  incumbrances  as  they 
exist  at  the  time  of  commencing  to  fulfill  them  respectively. 
Judgment  affirmed  in  part  and  reversed  in  part. 


OASES 
ARGUED  AND  DETERMINED 

IN  THK 

SUPREME  COURT 

AT  THB 

JANUARY  TERM,  1871,  HELD    IN  VIRGINIA  CITY. 


Present : 

HON.  HENRY  L.  WARREN,  CHIEF  JCSTIOK. 

HON.  HIRAM  KNOWLES,     | 

HON.  GEORGE  G.  SYMES,   J  JUSTICBS- 


MURPHY,  respondent,  v.  AMES  et  al.,  appellants. 

PRACTICE — probate  judge  cannot  issue  summons  — jurisdiction.  A  judge  of  the 
probate  court  has  uo  power  to  issue  aiid  attest  a  summons  under  his  owu 
hand,  if  there  is  uo  law  providing  for  a  clerk  or  seal  of  the  court,  and  no 
jurisdiction  is  acquired  by  such  a  summons. 

PRACTICE  —  special  appearance — jurisdiction.  The  special  appearance  of  a 
party  for  the  purpose  of  moving  to  dismiss  the  action  confers  no  jurisdic- 
tion upon  the  court. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

MURPHY  commenced  this  action  against  T.  P.  and  J.  A. 
Ames,  in  the  probate  court  of  Lewis  and  Clarke  county,  in 
April,  1868,  to  recover  $231.  A  summons  was  issued  under 


1871.]  MURPHY  0.  AMES.  277 

the  hand  and- seal  of  M.  P.  Truett,  probate  judge.  The 
defendants  then  appeared,  specially,  for  the  purpose  of 
making  a  motion  to  dismiss  the  action  and  quash  the  sum- 
mons, because  there  was  no  legal  summons  issued  under 
the  seal  of  the  court,  and  signed  by  the  clerk  thereof.  The 
motion  was  overruled  by  the  court,  and  the  defendants' 
attorneys  withdrew.  Judgment  was  rendered  in  favor  of 
plaintiff,  and  defendants  appealed  to  the  district  court. 

In  April,  1870,  in  the  district  court,  SYMES,  J.,  the  judg- 
ment of  the  probate  court  was  affirmed,  and  defendants 
appealed. 

GHUMASEKO  &  CHADWIOK,  for  appellants. 

The  probate  courts  are  courts  of  record.  There  can  be  no 
court  without  a  special  enactment  of  the  legislature.  A 
court  should  have,  a  judge  and  a  prothonotary.  Bouv. 
L.  D.,  "Court." 

The  practice  of  the  probate  court  is  regulated  by  that  of 
the  district  court.  Acts  1867,  259,  §  7.  Suits  must  be  com- 
menced in  the  probate  court  by  filing  the  complaint  with 
the  clerk  of  the  court,  and  the  issuing  of  a  summons 
thereon.  The  clerk  must  indorse  the  complaint  and  sign 
the  summons.  Civil  Prac.  Act,  §§  22,  23.  These  sections 
must  be  strictly  construed.  The  summons  was  not  signed 
by  "the  clerk  of  the  court,"  and  the  action  should  have 
been  dismissed. 

The  mode  of  commencing  suits  and  acquiring  jurisdiction 
of  parties  is  regulated  by  the  civil  practice  act  and  not  by 
common  law.  The  act  must  be  strictly  followed.  Dupuy 
v.  Shear,  29  Cal.  238. 

WOOLFOLK  &  TOOLE,  for  respondent. 

The  organic  act  dot's  not  make  probate  courts  courts  of 
record,  or  require  the  appointment  of  a  clerk  in  such  courts. 
Organic  Act,  §  9  ;  Amended  Organic  Act,  §  2. 

There  is  no  law  making  probate  courts  courts  of  record 
They  are  courts  of  inferior  jurisdiction.  Acts  ]86.%  890,  §  ] 
Probate  judges  are  allowed  fees  for  issuing  a  summons  and 


2*78  MURPHY  v.  AMES.  [Jan.  T 

performing  duties  that  appellants  claim  they  could  not  per 
form.    Acts  1865,  473,    474.    Clerks  of  the  district  court 
receive  fees  for  similar  services.    Acts  1865,  470  ;  Acts  1867, 

348,  §§  1,  ?. 

If  probate  courts  were  courts  of  record  under  the  laws  of 
Montana,  they  are  not  common -law  courts  of  record.    Com 
mon-law  courts  may  be  modified  by  statute.     The  legisla- 
ture contemplated  that  the  judges  of  probate  courts  should 
discharge  the  duties  of  clerk. 

There  was  no  such  office  as  clerk  of  the  probate  court 
until  December  30,  1868.  Acts  1869,  p.  70.  There  could 
be  no  legal  appointment  until  this  office  had  been  created. 
The  organic  act  and  the  statutes  had  conferred  powers  upon 
the  probate  courts.  This  grant  of  powers  carries  with  it 
every  thing  necessary  to  its  complete  exercise.  The  right  of 
a  probate  judge  to  issue  a  summons  would  be  implied  as 
incident  to  its  powers,  even  if  there  were  no  law  giving  him 
this  right.  Acts  1865,  139,  §  482,  Nougues  v.  Douglass,  7 
Cal.  80  ;  Kennedy  v.  ffamer,  19  id.  374. 

Section  22  of  the  practice  act  was  borrowed  from  Califor- 
nia and  doubtless  left  in  the  act  through  mistake.  It  does 
not  prevent  a  probate  judge  from  acting  as  his  own  clerk. 

WARREN,  C.  J.  The  only  question  presented  in  this 
record  is,  whether  the  probate  court  acquired  jurisdiction  in 
the  cause  by  the  service  upon  defendants  of  a  summons 
issued  under  the  hand  of  the  judge  of  that  court.  This 
was  before  the  passage  of  the  act  of  the  legislative  assembly 
making  provision  for  clerks  of  the  probate  courts.  The 
civil  practice  act,  however,  then  in  force,  prescribed  tin- 
manner  of  commencing  actions  in  the  probate  courts,  and 
required  the  summons  to  be  issued  under  the  hand  of  the: 
clerk,  and  the  seal  of  the  court.  The  fact  that  the  statute 
had  made  no  provision  for  either  clerk  or  seal  for  such 
courts  did  not  confer  upon  the  judge  the  power  to  issue  and 
attest  a  summons  under  his  own  hand.  Voluntary  appear- 
ance would  be  sufficient  to  confer  jurisdiction,  but  the 
defendants  in  this  case  having  confined  their  appearance  tc 


1871.]  MASON  v.  GERMAINE.  279 

•he  sole  purpose  of  moving  for  a  dismissal,  and  not  being 
properly  in   court,  the   proceedings  and   judgment  were 
cor  am  non  judice  and  must  be  set  aside. 
The  judgment  is  reversed  and  cause  remanded. 

Judgment  reversed. 


*MASON  et  al.,  respondents,  v.  GERMAINE  et  al.,  appellant?. 

PRACTIOK —  appeal  bond  to  supreme  court  of  United  States.  The  bond  on  appeal 
from  this  court  to  the  supreme  court  of  the  United  States  is  the  same  as  that 
required  by  the  laws  of  congress  and  the  rules  of  the  supreme  court  of  the 
United  States  on  appeals  from  the  circuit  court  to  the  said  supreme  court. 

PRACTICE  —  conditions  of  bonds  on  appeal  to  stay  execution  of  judgment.  The 
execution  of  a  judgment  for  the  sale  of  property  to  satisfy  mechanics'  lieua 
is  not  stayed  on  appeal  to  the  supreme  court  of  the  United  States,  unless 
the  bond  on  such  appeal  is  conditioned  according  to  law,  and  executed  to 
the  respondents,  and  sufficient  in  amount  to  secure  the  liens  decreed,  the 
costs  of  suit,  the  damages  for  the  delay  and  detention  of  the  property  and 
the  costs  and  interest  on  the  appeal. 

THE  facts  appear  in  the  opinion  of  the  court. 

SHOBER  &  LOWRY,  W.  F.  SANDERS  and  CHUMASERO  & 
CHADWICK  for  motion  for  a  remittitur. 

The  bond  required  by  the  last  clause  of  the  judiciary  act 
must  be  sufficient  to  secure  the  whole  judgment  in  case  it 
should  be  affirmed,  if  the  writ  of  error  operates  as  a  super- 
sedeas.  1  U.  S.  Stats,  at  Largo,  84,  404 ;  Catlett  v.  Brodie, 
9  Wheat.  553  :  Stafford  v.  Union  Bank  of  Louisiana,  1C 
How.  135. 

No  bond  has  been  given  in  this  case  to  secure  any  part  of 
the  judgment,  if  it  is  affirmed.  The  writ  of  error  does  not 
operate  as  a  supersedeas  ;  and  the  remittitur  follows  as  u 
matter  of  law. 

*  The  original  cue  l»  reported  on  page  283. 


280  MASON  v.  GEKMAINE.  [Jan.  T , 

This  is  the  proper  court  to  apply  to  for  the  purpose  of 
having  the  decree  carried  into  effect.  Stafford  v.  Union 
Bank  of  Louisiana,  17  How.  275. 

E.  W.  &  J.  K.  TOOLE,  against  the  motion. 

This  motion  should  have  been  made  in  the  supreme  court 
of  the  United  States.  The  court  from  which  the  appeal  is 
taken  cannot  act  in  the  first  instance.  The  motions  for  a 
remittitur,  in  all  the  cases  cited,  were  made  in  the  supreme 
court  of  the  United  States. 

The  question  of  the  sufficiency  of  an  undertaking  to  oper- 
ate as  a  supersedeas,  where  the  citation,  bond,  etc.,  are 
given  within  the  time,  and  allowed  by  the  proper  authority, 
must  be  determined  by  the  court  to  which  the  appeal  is 
taken. 

Appellants  have  a  right  to  amend  their  undertaking  if 
defective.  Catlett  v.  J3rodie,  9  Wheat.  553.  By  granting  a 
remittitur,  this  court  would  deprive  appellants  of  a  right 
to  amend  their  bond,  and  they  would  have  no  redress. 

SYMES,  J.  This  case  came  up  on  appeal,  and  the  judg- 
ment below  was  affirmed  at  the  August  term  of  this  court, 
and  an  appeal  was  taken  to  the  supreme  court  of  the 
United  States.  A  motion  is  now  made  for  a  remittitur  to 
the  court  below,  to  execute  the  judgment,  on  the  ground 
that  the  bond,  on  appeal  from  this  court,  is  not  sufficient  to 
stay  the  execution  of  the  judgment.  The  case  is  one 
brought  under  the  mechanics'  lien  law,  to  enforce  liens  to 
the  amount  of  about  $20,000,  for  the  construction  of  a 
large  brick  hotel,  and  the  bond  given  to  supersede  the  exe- 
cution of  the  judgment,  during  the  pendency  of  the  appeal, 
in  the  sum  of  $25,000,  in  addition  to  a  bond  for  costs,  is 
conditioned  only  that  the  obligors  will  answer  all  damage? 
to  the  hotel  building  caused  by  waste  or  fire,  during  the 
possession  of  the  same  by  appellants,  not  exceeding  said 
sum. 

Respondents,  for  the  motion,  contend  that  the  bond 
should  be  for  the  payment  of  the  whole  amount  of  the 


1871.]  MASON  v.  GERMAINE.  281 

judgment  in  case  of  affirmance.  Appellants,  against  the 
motion,  contend  that  it  is  an  appeal  only  from  that  portion 
of  the  judgment  decreeing  the  enforcement  of  the  liens,  and 
ordering  sale  of  the  property  therefor,  and  only  required 
such  a  bond. 

The  supreme  court  of  the  United  States  have  held  that, 
to  supersede  a  judgment  on  writ  of  error  or  appeal,  the 
bond  must  be  sufficient  to  secure  the  whole  amount  of  the 
judgment,  damages  for  delay,  and  costs.  Oatlett  v.  JSrodie, 
9  Wheat.  552 ;  Stafford  et  at.  v.  Baiik  of  Louisiana,  16 
How.  139. 

In  the  latter  case,  holding  that,  although  it  was  an  appeal 
in  equity,  and  the  property  was  in  the  hands  of  a  receiver, 
the  bond  should  be  the  same,  sufficient  to  secure  the  judg- 
ment. But  the  supreme  court,  at  the  December  term,  1867, 
adopted  a  rule  providing  the  bonds  that  should  be  given  on 
writs  of  error  and  appeals.  See  32d  Sup.  Ct.  Rule. 

The  rule  provides  that  in  all  suits  where  the  property  in 
controversy  necessarily  follows  the  event  of  the  suit,  as  in 
real  actions,  replevin,  and  suits  on  mortgages,  indemnity  in 
such  cases  shall  only  be  required  in  an  amount  sufficient  to 
cover  amount  recovered  for  use  of  the  property,  costs  of  suit 
and  damages  for  delay,  and  costs  and  interest  on  the  ap- 
peal ;  and  conditioned  that  the  appellant  will  prosecute  his 
writ  of  error  or  appeal  to  effect,  and  answer  damages  if  he 
fail  to  make  his  plea  good. 

The  appeal  in  this  case  to  this  court,  and  after  affirmance 
from  this  court,  was  from  the  whole  judgment  of  the  court ; 
but  the  bond  given  in  the  court  below,  and  since  in  this 
court,  was  not  intended  to  stay  the  personal  judgment 
against  defendants,  but  only  that  portion  of  the  judgment 
decreeing  the  sale  of  the  property  to  satisfy  the  liens.  The 
bond  on  appeal  to  this  court  was  given  in  accordance  with 
section  336,  Civil  Code,  which  provides  the  bond  to  be  given 
in  such  cases. 

But  the  bond  on  appeal  from  this  to  the  supreme  court 
of  the  United  States   must  be  in  accordance  with  the  law 
and  practice  provided  by  congress  and  the    rules  of   the 
VOL.  I. —36. 


282  KING  v.  SULLIVAN.  [Jan.  T,, 

supreme  court  of  the  United  States  on  appeals  from  the 
circuit  courts  of  the  United  States  to  the  supreme  court 
thereof. 

Is  the  bond  filed  in  this  case  in  accordance  with  the  said 
rule  of  the  supreme  court,  adopted  in  accordance  with  the 
laws  of  congress  ? 

The  bond  is  filed  to  supersede  or  stay  the  execution  of  a 
decree  for  the  sale  of  real  property,  which  property  neces- 
sarily follows  the  event  of  the  suit.  The  bond  should  then 
provide  for  an  amount  to  secure  the  liens  recovered,  if  any, 
for  detention  of  the  property,  the  costs  of  suit,  just  dam- 
ages for  delay,  and  costs  and  interest  on  appeal,  and  be 
executed  to  the  respondents  or  appellees,  and  conditioned 
as  required  by  said  rule. 

The  bond  in  this  case  is  not  executed  to  respondents  ; 
does  not  provide  for  damages  for  delay,  or  detention  of  the 
property,  nor  for  costs  and  interest  on  appeal,  and  is  not 
conditioned  as  prescribed  by  law,  and  it  is  insufficient  to 
stay  the  execution  of  the  judgment. 

The  court  orders  that  a  remittitur  issue  from  this  court  to 
the  court  below  to  execute  the  judgment,  unless  the  appel- 
lants within  twenty  days  file  a  legal  bond  in  accordance 
with  the  law  as  stated  in  this  decision. 

Remittitur  granted. 


KING  et  al.,  respondents,  v.  SULLIVAN,  appellant. 

PRACTICE  —  consideration  of  statement  — exceptions.  This  court  will  not  con- 
sider a  statement  that  has  not  been  duly  settled  and  certified,  or  exceptions 
that  have  not  been  duly  presented  and  signed  according  to  the  statute. 

I'BACTICE  —  review  of  exceptions  to  admission  of  evidence.  An  exception  to  the 
admission  of  evidence  upon  a  cross-examination  will  not  be  examined  if  all 
the  evidence  is  not  before  the  court. 


1871.J  KING  -o.  SULLIVAN.  28% 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  arguments  of  counsel  and  statement  of  facts  are  not 
reported,  because  the  court  did  not  review  them.  The  cause 
was  tried  in  the  district  court  before  SYMES,  J. 

WOOLFOLK  &  TOOLE,  for  appellant. 
OHUMASERO  &  CHAD  WICK,  for  respondents. 

WARREN,  C.  J.  In  this  case  the  appeal  is  from  an  order 
overruling  defendant' s  motion  for  a  new  trial,  and  from  the 
judgment  entered  on  the  verdict  of  the  jury  for  plaintiffs.  The 
transcript  contains  what  purports  to  be  the  evidence  in  the 
case,  and  also  instructions  given  and  refused,  and  excep- 
tions taken  at  the  trial  below.  At  the  conclusion  of  ap- 
pellant' s  motion  for  a  new  trial,  which  sets  forth  the  grounds 
of  the  motion,  appears  the  words,  "statement  settled  as 
correct,"  but  there  is  no  certificate  of  settlement  of  any 
statement  signed  by  the  attorneys  of  the  parties  or  by  the 
judge  below,  nor  does  it  appear  what  statement  is  referred 
to  by  these  words.  This  court  can  consider  nothing  which 
is  not  part  of  the  judgment-roll,  unless  it  be  presented  by 
exceptions  duly  preserved  and  signed,  or  by  statement  set- 
tled and  certified  as  required  by  the  statute.  An  exception 
to  the  admission  of  some  evidence,  upon  cross-examination 
of  the  defendant,  is  properly  preserved  by  the  signature  of 
the  judge,  but,  as  the  whole  evidence  is  not  before  us,  we 
cannot  presume  the  ruling  to  be  erroneous  or  that  the  ap- 
pellant was  prejudiced  by  it. 

The  judgment-roil  does  not  show  the  errors  assigned,  and 

the  judgment  must  be  affirmed. 

Judgment  affirmed. 


284  NELSON  v.  O'NEAL.  [Jan.  T. 


NELSON,  appellant,  v.  O'NEAL,  respondent. 

iNJimcrriON — miners'  dam  to  stop  tailings.  It  is  not  an  abuse  of  discretion  for 
a  court  to  refuse  to  enjoin  parties  from  building  a  dam  upon  their  mining 
ground,  to  prevent  tailings  from  injuring  their  property. 

RIGHT  OP  MINERS  TO  CHANNEL  OF  CREEK  FOR  WATEBAND  TAILINGS.  Miners 
are  entitled  to  the  free  use  of  the  channel  of  a  creek,  so  that  the  water  will 
flow  from  their  ground,  but  they  have  no  right  to  fill  the  channel  with  tail- 
ings that  will  flow  down  upon  the  claims  of  other  miners. 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

THE  facts  are  stated  in  the  opinion  of  the  court. 
The  judgment  appealed  from  was  rendered  in  the  district 
court,  in  August,  1870,  by  SYMES,  J. 

SHOBER  &  LOWBY,  E.  W.  TOOLE  and  G-.  MAY,  for  appel- 
lant. 

It  is  admitted  by  the  pleadings  that  respondents  were 
insolvent.  The  jury  found  that  the  erection  of  the  dam 
higher,  as  complained  of  by  appellant  and  threatened  by 
respondents,  would  interfere  with  the  profitable  use  and 
enjoyment  of  appellant's  mining  ground.  Appellant  was 
entitled  to  an  injunction  to  restrain  respondents  from  erect- 
ing said  dam.  Ramsay  v.  Chandler,  3  Cal.  90. 

An  injunction  is  a  preventive  remedy,  and  it  comports 
more  with  justice  to  both  parties  to  restrain  the  threatened 
trespass,  than  to  leave  the  appellant  to  his  remedy  at  law, 
particularly  when  the  respondents  admit  their  insolvency 
and  have  no  remedy  at  law.  Slade  v.  Sullivan,  17  Cal. 
102  ;  Hill,  on  Inj.,  ch.  1,  §§  1,  5,  7,  14,  31. 

Appellant's  mining  operations  will  be  interfered  with,  if 
respondents  are  not  enjoined.  Respondents  have  shown  nc 
right  to  trespass  on  appellant's  ground. 

W.  F.  SANDERS,  for  respondents. 

Respondents  own  the  ground  on  which  the  dam  was 
erected  and  debris  arrested.  Respondents  threatened  to 


1871.]  NELSON  v.  O'NEAL.  286 

raise  their  dam  higher  to  stop  a  trespass  of  appellant. 
They  could  compel  appellant  to  stop  this  trespass  on  his 
own  ground.  The  pleadings  and  findings  do  not  show  who 
has  priority  of  right  in  mining.  Appellant  cannot  have 
judgment,  until  the  questions  relating  to  the  right  of  re- 
spondents to  flow  back  on  appellant's  ground,  debris,  tail- 
ings, etc.,  which  appellant  is  wrongfully  attempting  to  flow 
on  respondents,  are  settled  in  favor  of  appellant.  Logan 
v.  Dri.scoll,  19  Cal.  623 ;  Am.  Law  Reg.  1867,  1868,  p.  698. 
Parties  must  care  for  their  own  tailings  on  their  own 
ground.  Respondents  could  crib  those  of  appellant  on  his 
own  ground,  but  the  jury  find  that  respondents  cribbed 
them  on  their  own.  A  mere  threat  to  commit  a  trespass, 
without  an  overt  act,  does  not  justify  an  injunction. 

KNOWLES,  J.  This  is  an  action  of  trespass,  brought  by 
appellant  for  damages  for  an  alleged  entry  upon  his  mining 
ground,  and  erecting  a  dam  thereon,  which  stopped  tailings 
upon  the  said  mining  ground,  and  alleging  that  the  respond- 
ents threatened  to  continue  the  injury,  and  to  erect  the  said 
dam  higher,  and  asking  for  an  injunction  to  restrain  them 
from  the  commission  of  these  wrongs.  Respondents  deny 
that  appellant  owns  the  mining  ground  described;  admit 
erecting  the  dam  and  the  intention  to  erect  it  higher,  and 
aver  that  the  dam  is  on  their  own  ground,  and  that  the 
same  was  erected  to  prevent  appellant  from  running  their 
railings  down  upon  their  ground. 

The  jury,  in  their  special  findings,  determine  that  appel- 
lant does  not  own  the  mining  ground  upon  which  the  dam 
was  erected  ;  that  respondents  had  not  interfered  with  the 
mining  rights  of  appellant  by  the  erection  of  the  dam  in 
question.  They  also  find  that  the  erection  of  the  dam  higher 
\vill  interfere  with  the  profitable  mining  operations  of  appel- 
lant. Upon  this  last  finding,  appellant  asked  an  injunction 
>f  the  court  below,  which  was  refused.  This  is  assigned  as 
nrror. 

It  appears,  from  the  complaint  of  appellant,  that  the  tail- 
ings which  the  dam  of  respondents  prevented  from  flowing 


286  TOOMBS  0.  HOKNBUCKLE.  [Jan.  T., 

down,  were  tailings  from  appellant's  mining  ground.  The 
granting  or  refusing  an  injunction  was  discretionary  with 
the  court  below.  We  do  not  think  it  was  an  abuse  of  dis- 
cretion in  refusing  an  injunction  to  restrain  the  respondents 
from  building  a  dam  on  their  own  ground,  so  as  to  prevent 
appellant  from  committing  an  injury  upon  the  same.  Appel- 
lant would  be  entitled  to  the  free  use  of  the  channel  of  the 
creek,  to  allow  the  water  which  came  down  from  above  to 
flow  away  from  his  mining  ground,  but  he  had  no  right 
to  fill  the  channel  of  the  creek  with  tailings  and  debris,  and 
let  it  flow  down  upon  respondent's  ground. 
Order  of  the  court  below  affirmed,  with  costs. 

Judgment  affirmed. 


TOOMBS,  respondent,  n.  HOBISTBUCKLE  et  al.,  appellants. 

PLBADINO— insufficient  dental.  The  denial  of  an  "unlawful  and  wrongful" 
diversion  admits  the  fact  of  the  diversion. 

PRACTICE  —  verdict  against  evidence.  A.  verdict  will  not  be  set  aside,  as  con- 
trary to  evidence,  unless  it  is  clearly  unsupported  by  evidence. 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

THE  facts  are  contained  in  the  opinion.  The  action  was 
tried  in  April,  1870,  in  the  district  court,  before  SYMES,  J. 

CHTJMASERO  &  OHADWICK,  for  appellants. 

The  decree  of  the  court  below  was  not  justified  by  the 
evidence  or  special  findings  of  the  jury.  The  testimony 
shows  that  the  water  flowing  from  the  springs  was  dimin- 
ished in  quantity  almost  one-third,  and  lacked  only  ten 
inches  of  furnishing  respondent  with  all  the  water  he  was 
entitled  to  by  the  findings  of  the  jury.  The  use  of  this 
water  by  miners  materially  diminished  its  quantity  below 
the  springs.  The  findings  are  in  accord  with  the  facts,  and 


1871.]  TOOMBS     0.  HOHNBUCKLE.  287 

the  rights  of  the  parties  should  be  determined  by  them. 
These  findings  show  that  appellants  had  not  diverted  from 
respondent's  ditch  any  water  to  which  respondent  was  enti- 
tled, and  that  there  flowed  at  all  times  from  the  springs, 
the  water  that  respondent  was  entitled  to,  if  the  miners  did 
not  obstruct  it.  When  the  miners  obstructed  the  water  from 
the  springs,  sixty  inches  reached  the  respondent's  ditch. 
The  miners  so  obstructed  this  water  during  June  and  July, 
1869. 

The  decree  makes  appellants  liable  for  the  acts  of  those 
miners,  and  compels  them  to  supply  respondent  with  water 
to  which  respondent  has  no  claim.  Appellants  are  obliged 
to  leave  in  the  creek,  at  the  head  of  respondent's  ditch, 
seventy  inches  of  water,  regardless  of  any  depredations  that 
may  be  committed  by  strangers  below  their  point  of  appro- 
priation. This  decree  overrides  every  principle  of  equity. 
No  man  should  be  made  responsible  for  the  acts  of  another, 
committed  without  his  knowledge  or  assent.  The  injunc- 
tion wrests  from  the  appellant  his  property,  to  compensate 
an  injury  that  he  did  not  cause.  That  part  of  the  decree, 
which  interferes  with  the  user  by  appellants  of  all  the  waters 
at  the  head  of  their  ditch,  in  Magpie  creek,  should  be  set 
aside,  and  the  injunction  should  be  dissolved. 

E.  W.  &  J.  K.  TOOLE,  for  respondent. 

Respondent  was  first  in  right  as  to  seventy  inches  of 
water.  The  decree  gives  him  this  amount  at  the  head  of  his 
ditch.  Respondent  cannot  suffer  from  natural  causes  affect- 
ing the  supply  of  water.  The  finding,  respecting  the  springs, 
is  immaterial.  The  general  verdict  is  conclusive  as  to  tin- 
estoppel  claimed  by  appellants. 

WARUEX,  C.  J.  The  plaintiff,  in  this  case,  alleges  right 
of  possession  and  user  of  about  two  hundred  and  fifty  inches 
of  the  waters  of  Magpie  creek,  by  virtue  of  his  appropriation 
thereof,  made  in  1865,  by  means  of  a  ditch  there  constructed, 
for  the  purpose  of  irrigation,  and  alleges  ;i  continuous 
wrongful  diversion  of  such  water  by  defendants,  prior  to  tin 


288  Too  MBS  i\  HOKNBUCKLE.  [Jan.  T., 

commencement  of  this  action,  and  threats  by  defendants  to 
continue  such  diversion.  He  prays  judgment  for  damages  ; 
that  title  be  established  and  decreed  in  him  to  the  extent  of 
his  prior  appropriation,  and  that  defendants  and  those  in 
privity  with  them,  be  perpetually  enjoined  from  diverting 
such  waters. 

The  answer  in  substance  denies  plaintiff's  appropriation, 
and  also  denies  that  defendants  "  wrongfully  or  unlawfully  " 
diverted  said  water,  and  sets  up  an  appropriation  of  the 
waters  of  Magpie  creek,  made  by  defendants  for  mining 
purposes,  in  May,  1866,  and  subsequently,  in  October,  1866, 
by  means  of  ditches  then  constructed,  and  that  said  waters 
were  then  unappropriated,  and  that  defendants  thereafter 
remained  in  full  and  peaceable  possession  thereof ;  and, 
further,  plead  by  way  of  estoppel,  that  plaintiff  had  actual 
knowledge  of  defendant's  intention  to  so  appropriate  said 
water,  prior  to  and  during  the  construction  of  their  ditches, 
and  failed  to  assert  his  title  to  said  water,  or  to  forbid  their 
construction  of  the  ditches. 

The  replication  specifically  denies  each  allegation  of  the 
answer. 

The  denial  of  "  unlawful  and  wrongful"  diversion,  as  has 
been  often  held,  admits  the  fact  of  diversion,  so  that  the 
only  issues  on  the  pleadings  are  upon  the  priority  of  the 
respective  appropriations,  and  upon  the  facts  constituting 
the  estoppel  pleaded. 

The  issues  were  tried  by  jury,  which  found  a  general 
verdict  for  the  plaintiff,  and  a  special  verdict  upon  questions 
of  fact  submitted  to  them.  The  court  below  overruled 
defendant's  motion  for  a  new  trial,  and  rendered  judgment 
for  the  damages  found  by  the  jury,  and  entered  a  decree 
perpetually  enjoining  the  defendants  and  their  privies  from 
so  diverting  the  waters  of  the  creek,  as  to  prevent  seventy 
inches  of  water,  being  the  quantity  found  by  the  jury  to 
have  been  first  appropriated  by  plaintiff,  from  flowing  down 
to  plaintiff's  ditch. 

From  the  order  overruling  his  motion  for  a  new  trial,  arid 
from  the  judgment  and  decree,  the  defendant  appeals,  and 


1871.]  TOOMBS  75.  HOKNBUCKLE.  289 

assigns  as  error  that  the  evidence  and  special  findings  of  the 
jury  do  not  support  the  decree,  and  are  in  conflict  with  the 
general  verdict. 

The  evidence  is  in  some  respects  conflicting,  but  whatever 
our  views  might  be,  in  any  case,  we  do  not  feel  justified  by 
uny  precedents  in  setting  aside  a  verdict  as  contrary  to  evi- 
dence, unless  clearly  unsupported  by  evidence,  which  is  not 
the  case  here,  so  that  the  only  question  left  to  consider  is, 
whether  the  special  verdict  conflicts  with  the  general  verdict, 
and  fails  to  support  the  decree. 

The  general  verdict  finds  the  issues  joined,  as  to  priority 
of  appropriation,  and  as  to  the  facts  set  up  as  an  estoppel 
for  the  plaintiff.  These  were  the  only  issues  raised  by  the 
pleadings. 

The  first  special  finding  of  the  jury  fixes  the  amount  of 
plaintiff's  appropriation  at  seventy  inches  of  water,  and 
of  this  finding  appellants  do  not  complain.  The  second 
finding  is,  that  sixty  inches  of  water  flowed  down  to  plain- 
tiff's ditch  during  June  and  July,  1869,  when  the  diversion 
!>y  defendants  is  alleged.  The  third  finding  is,  that  seventy 
inches  of  water  "flow  down  Magpie  gulch"  from  "the 
springs,"  when  all  the  water  is  taken  out  above  the  springs 
d iii-ing  wet  or  dry  season,  and  it  is  not  obstructed  by 
miners.  The  "  springs,"  mentioned  in  the  last  finding,  ap- 
pear from  the  evidence  to  be  situated  between  the  respective 
ditches  of  plaintiff  and  defendants,  the  latter  being  some 
distance  above  the  former,  and  appellants  claim  that  under 
the  third  finding  of  the  jury,  the  defendants  did  not,  and  as 
a  physical  fact  could  not,  divert  any  water,  to  which  plain- 
tiff  was  found  by  the  jury  to  be  entitled. 

Had  the  question  of  diversion  been  properly  put  in  issue, 
and  if  the  jury  had  definitely  found  that,  at  the  time  of  the 
alit-ged  diversion,  the  '"springs,"  below  defendant's  ditch, 
alone  furnished  sufficient  water  to  supply  the  amount  found 
to  have  been  appropriated  by  plaintiff  at  the  head  of  his 
ditch  ;  this  would  be  undoubtedly  true,  but  the  last  finding 
is  too  uncertain  and  indefinite  to  overturn  the  other  special 
findings  and  the  general  verdict,  and  is,  besides,  immaterial, 
Vol.  1.  37 ' 


290  LOMME  fl.  KlNTZINtt.  [Jail.  T.., 

being  upon  a  fact  not  in  issue.  The  point  urged  by  appel- 
lant, that  the  decree  makes  him  answerable  for  the  acts  of 
third  parties  with  whom  he  has  no  privity,  in  diverting 
water  below  the  springs,  is  not  well  taken,  as  the  decree 
rendered  only  requires  the  defendants  to  permit  so  much  of 
the  waters  in  question  to  pass  their  ditch,  as  that  seventy 
inches  may  in  its  natural  flow  reach  the  head  of  plaintiff's 
ditch,  in  the  bed  of  the  stream  at  that  point,  whether  from 
the  springs  or  above  them,  and  this  is  all  that  is  enjoined  on 
them.  They  are  not  held  responsible  for  any  acts  of  others. 
The  judgment  and  decree  are  affirmed. 

Judgment  affirmed. 


LOMME,  respondent,  v.  KINTZING  et  al.,  appellants. 

PRACTICE  —  sham  answer — judgment  on  pleadings.  If  the  answer  does  not 
raise  a  material  issue  it  may  be  struck  out  as  sham,  or  judgment  may  br 
rendered  on  the  pleadings. 

PARTNERSHIP — agreement  about  profits  and  payment  of  debts  —  creditor.  A 
special  agreement  between  two  parties  by  which  one  of  them  is  to  receive 
one-third  of  the  profits  of  a  business  for  his  services,  and  the  other  is  to  be 
liable  for  the  debts,  is  no  defense  to  an  action  commenced  against  them  as 
partners  by  a  creditor,  who  had  no  notice  or  knowledge  of  the  agreement 
before  the  liability  accrued. 

PARTNERSHIP  —  effect  of  plea  of  bankruptcy  by  one  partner.  In  a  suit  against 
a  firm  in  which  one  partner  flies  a  plea  of  bankruptcy,  the  court  properly 
directed  a  stay  of  proceedings  as  to  him,  and  rendered  a  judgment  for  the 
amount  claimed  by  plaintiff,  to  be  enforced  against  the  partnership  prop- 
erty and  the  individual  property  of  the  other  partner. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  facts  are  stated  in  the  opinion.  The  complaint  alleged 
"that,  on  the  1st  day  of  July,  A.  D.  1869,  the  said  defend- 
ants were  copartners,  doing  business  at  the  town  of  Helena, 
county  and  Territory  aforesaid,  under  the  firm  name  of 
B.  C.  Kmtzing  &  Co.;  that,  on  the  day  and  year  aforesaid, 
the  said  defendants,  copartners  as  aforesaid, 


1871. j  Lu.MME    C.    KlNTZlNtJ.  291 

unto  this  plaintiff  in  the  sum  of  $4,384.89,  balance  due  for 
money  lent  and  advanced  by  plaintiff  to  the  defendants, 
and  for  money  had  and  received  by  the  said  defendants  for 
the  use  and  benefit  of  this  plaintiff,  for  goods  and  wares  and 
merchandise  sold  and  delivered  by  plaintiff  to  the  said  de- 
fendants, and  for  work,  labor  and  services  done  and  per- 
formed by  the  said  plaintiff  for  said  defendants  —  all  at  the 
special  instance  and  request  of  the  said  defendants  —  which 
said  sum  of  $4,384.89  the  said  defendants,  on  the  day  and 
year  aforesaid,  promised  to  pay  the  said  plaintiff  when 
thereto  requested  by  the  said  plaintiff;  that  the  said  plain- 
tiff has  demanded  payment  of  the  said  sum  of  the  defend- 
ants ;  that  the  defendants,  or  either  of  them,  have  not  paid 
the  said  sum,  or  any  portion  thereof,  and  the  same  remains 
wholly  due  and  unpaid,  wherefore  the  said  plaintiff  prays 
judgment,''  etc. 

To  this  complaint  the  appellant  B.  C.  Kintzing  tiled  his 
third  amended  answer,  and  "denies  that  on  the  1st  day  of 
July,  A.  D.  1869,  or  at  any  other  time,  the  defendants  were 
partners  in  the  town  of  Helena,  and  Territory  of  Montana, 
under  the  firm  name  and  style  of  B.  C.  Kiiitzing  &  Co. 
Denies  that  on  the  day  and  year  aforesaid,  or  at  any  other 
time,  the  said  defendants,  as  such  copartners,  were  indebted 
u>  tlie  plaintiff  in  the  sum  of  $4,384.89,  or  any  other  sum, 
for  money  lent  and  advanced  by  plaintiff  to  defendants: 
for  money  had  and  received  by  defendants  for  the  use  and 
benefit  of  plaintiff;  for  goods,  wares  and  merchandise  sold 
and  delivered  by  plaintiff  to  defendants,  and  for  work,  labor 
and  services  done  and  performed  by  plaintiff  for  said  de- 
fendants, at  their  special  instance  and  request,  as  charged 
in  plaintiff's  complaint. 

Denies  that  this  defendant  ever  promised  to  pay  plaintiff 
the  said  sum  of  $4,384.89,  or  any  other  sum;  denies  that 
plaintiff  ever  demanded  payment  of  said  amount  of  money 
from  this  defendant  ;  denies  that  this  amount,  or  any  other 
sum,  remains  due  and  unpaid  to  plaintiff. 

Defendant,  for  further  answer  to  the  complaint  of  the 
plaintiff,  admits  that  for  a  short  time,  in  the  spring  of  1869, 


292  LOMME  v.  KINTZING.  [Jan.  T., 

the  above  defendants  were  associated  in  business  in  the 
town  of  Helena,  and  Territory  of  Montana,  under  the  name 
and  style  of  B.  C.  Kintzing  &  Co.,  but  avers  that  this  de- 
fendant had  no  interest  whatever  in  the  capital  stock  of  said 
business,  but  only  received  for  services  rendered  equal  to 
one-third  of  the  profits  of  the  business  of  said  B.  C.  Kiutz- 
ing  &  Co. ;  that  Charles  S.  Kintzing  owned  the  entire  capital 
stock  in  said  business,  and  was  solely  liable  for  the  debt 
incurred  in  said  business  by  B.  C.  Kintzing  &  Co.,  under 
his  agreement  with  this  defendant ;  and  that  plaintiff  had 
full  knowledge  of  the  extent  of  this  defendant's  interest 
and  liability  as  aforesaid  while  in  the  employment  of  B.  C. 
Kintzing  &  Co. 

This  defendant,  for  further  answer  to  plaintiff's  complaint, 
states  that  Charles  S.  Kintzing,  his  co-defendant  as  afore- 
said, has,  since  the  institution  of  this  suit,  been  adjudged 
a  bankrupt  under  and  by  virtue  of  the  provisions  of  an 
act  entitled  ;'An  act  to  establish  a  uniform  system  of  bank- 
ruptcy throughout  the  United  States."  The  proceedings, 
under  said  act,  having  been  had  in  the  city  of  St.  Louis 
and  State  of  Missouri,  wherefore  this  defendant  denies  the 
right  of  plaintiff  to  prosecute  this  action,  and  asks  to  be 
discharged  with  his  costs  in  this  behalf  expended." 

Judgment  was  rendered  for  plaintiff  in  October,  1870,  by 
the  district  court,  SYMES,  J. 

E.  W.  &  J.  K.  TOOLE,  for  appellants. 

The  proceedings  against  appellants  should  have  been 
suspended  by  the  court  after  the  plea  in  bankruptcy  had 
been  interposed.  This  plea,  for  the  purposes  of  this  appeal, 
must  be  taken  as  fully  established.  The  local  courts  must 
yield  to  the  superior  authority  of  the  courts  of  bankruptcy. 
The  execution  in  one  case  and  warrants  in  the  other  would 
require  the  respective  officers,  acting  under  them,  to  take 
the  same  property.  Property  thus  taken  belongs  to  the 
jurisdiction  of  one  of  these  courts.  The  territorial  courts 
cannot  adjudicate  the  rights  of  parties  under  the  bankrupt 
act.  They  must  be  determined  in  a  court  of  bankruptcy. 


1871.]  LOMME  v.  KINTZING.  293 

The  court  erred  in  rendering  judgment  on  the  pleadings. 
The  complaint  proceeds  upon  a  general  assumpsit,  express 
or  implied,  on  the  part  of  appellants,  to  pay  respondent  a 
certain  sum.  An  express  or  implied  promise  may  be  shown 
under  this  complaint.  Higgins  v.  Germaine,  ante,  228. 
The  gist  of  this  action  is  the  express  or  implied  promise  of 
appellants  to  pay  respondent.  Appellants  specifically  deny 
any  such  promise.  See  answer.  When  there  is  a  promise 
to  pay  a  sum  on  account  of  certain  items,  a  denial  of  such 
promise,  or  the  indebtedness,  is  good. 

The  partnership  is  denied  as  to  the  respondent.  The 
answer  states  facts,  showing  that  appellants  were  not  liable 
as  partners  to  respondent. 

The  defective  denials,  if  any,  are  cured  by  affirmative 
allegations.  Nudd  v.  Thompson,  34  Cal.  39  ;  3  Estee's  PI. 
381 ;  Newell  v.  Doty,  33  N.  Y.  83.  The  answer  denies  that 
any  thing  is  due  respondent.  To  render  a  judgment  on  the 
pleadings,  such  judgment  must  not  be  inconsistent  with 
any  material  matter  denied  or  affirmatively  pleaded.  The 
defective  denials,  if  any,  were  caused  by  the  bad  pleading 
of  respondent,  for  which  he  should  be  held  responsible. 

The  practice  act  of  Montana  contains  no  provision  for 
judgment  on  the  pleadings.  Section  50  provides  that  sham 
answers  may  be  stricken  out  on  motion.  The  New  York 
Code  provides  expressly  for  judgment  on  the  complaint,  and 
answer  on  five  days'  notice.  Howard's  IN".  Y.  Code,  388. 

No  judgment  can  be  rendered  on  the  pleadings  if  one 
material  fact  is  denied,  or  the  answer  sets  up  new  matter. 
The  whole  answer  must  be  "  sham  and  irrelevant."  Ohir- 
arddli  \.  McDcrmott,  22  Cal.  539  ;  Gay  v.  Winter,  34  id. 
161 ;  Willson  v.  McDonald  cited  in  3  Estee's  PI.  381,  §  4. 

Under  the  New  York  Code  judgment  cannot  be  rendered 
on  the  pleadings,  unless  the  whole  answer  is  frivolous  and 
insufficient.  Nichols  v.  Jones,  6  How.  Pr.  355  ;  Van  Valen 
v.  LapJia,))i,  13  id.  240  ;  Kelly  v.  Barnett,  16  id.  135  ;  People 
v.  McCumler,  18  N.  Y.  315. 

Appellants  denied  all  the  material  allegations  of  the  com- 
plaint, and  st>t  up  new  matter.  Yet  the  court,  without 


294  JJOMME  «.  KINTZING.  [Ja^.  T., 

notice,  rendered  judgment  on  the  pleadings,  on  the  ground 
that  one  single  denial  was  technically  defective. 

CHUMASERO  &  CHADWICK,  and  W.  F.  SANDERS,  for 
respondent. 

In  effect,  this  case  stands  on  a  demurrer  by  respondent 
to  the  answer  of  appellant  B.  C.  Kintzing,  because  it  did 
not  state  facts  to  constitute  a  defense,  and  did  not  deny  the 
allegations  of  the  complaint  so  as  to  constitute  a  defense. 

The  denial  of  copartnership  is  the  denial  of  an  immaterial 
allegation.  Whitwell  v.  Thomas,  9  Cal.  499.  But  the  denial 
is  faulty.  It  makes  the  firm  name  and  place  of  partnership 
material,  both  of  which  are  immaterial. 

The  allegations  of  the  complaint  are  interpreted  to  be,  that 
appellants  did  have  and  borrow  moneys,  and  did  perform 
labor  at  their  request.  The  second  denial  is  not  of  any  fact, 
but  the  conclusion,  the  indebtedness.  The  conjunctive  con- 
junction is  also  used  by  appellants  in  denying  that  they 
owe  for  the  three  several  items.  The  promise  to  pay,  upon 
the  facts  confessed,  is  implied  by  law.  A  denial  of  the 
promise  is  not  a  defense.  The  affirmative  allegations,  with 
Jio  denials  of  the  allegations  of  the  complaint, are  insufficient. 

The  bankruptcy  of  C.  S.  Kintzing  did  not  abate  the  action, 
nor  destroy  B.  C.  Kintzing' s  liability  or  that  of  the  firm. 

The  following  authorities  are  to  the  e fleet  that  the  denials 
of  the  answer  do  not  raise  an  issue  :  Sto.  on  Eq.  PL  852  : 
Stephen  on  PI.  243-5,  37U  :  .Hojdiitif  v.  Everett,  6  How.  Pr. 
159 ;  Salinger  v.  Lusk.  7  id.  430  ;  Damson  v.  Rowell, 
16  id.  467;  Fish,  v.  Reel  I  in/ton.  HI  Cal.  194.  and  cases 
cited. 

An  adjudication  of  bankruptcy  is  the  judgment  of  a 
court,  and  must  be  pleaded  with  the  precision  required  for 
pleading  judgments.  Xo  court  is  named  in  the  answer. 
If  the  bankruptcy  were  well  pleaded,  this  action  could  pro- 
ceed against  the  other  appellant,  as  surviving  partner,  and 
.judgment  could  be  rendered  against  the  property  of  the 
linn.  Our  statute  recognizes  the  same  principle,  in  allowing 
judgment  against  property  where  all  the  joint  owners  are 
not  served.  Civ.  Prac.  Act,  §  32. 


1871.]  LOMMK  v.  KINTZI.VG.  296 

WARREN,  C.  J.  The  court  below,  in  this  case,  on  motion 
of  the  plaintiff,  rendered  judgment  on  the  pleadings,  from 
which  the  defendants  appeal.  Under  our  practice,  where 
iin  answer  raises  no  material  issue,  the  plaintiff  may  either 
move  that  it  be  stricken  out  as  sham  and  irrelevant,  or  move 
for  judgment.  This  is  an  action  upon  an  account  against 
the  defendants,  as  copartners,  under  the  firm  name  of  B.  C. 
Kintzing  «t  Co.,  in  the  town  of  Helena  arid  Territory  of 
Montana.  The  separate  amended  answer  of  B.  C.  Kintzing 
denies  the  partnership  under  the  style  and  at  the  time  and 
place  alleged  ;  denies  indebtedness  of  defendants  as  such 
partners  :  denies  any  promise  by  himself  to  pay  ;  denies 
any  amount  to  be  due  plaintiff',  and  pleads  as  new  matter 
that  the  defendants  were,  for  a  short  time,  in  the  spring  of 
1869,  associated  in  business  in  the  town  of  Helena  and  Ter- 
ritory of  Montana,  under  the  style  of  B.  C.  Kintzing  &  Co.,  but 
that  C.  S.  Kintzing  furnished  all  the  capital  stock  for  such 
business,  and  by  special  agreement  was  to  be  individually 
liable  for  all  debts  incurred  therein,  and  B.  C.  Kintzing  was 
to  receive  one-third  of  the  profits  thereof  in  compensation 
f<>r  his  services,  and  avers  that  plaintiff  had  actual  knowl- 
edge of  this  agreement,  while  in  the  employment  of  B.  C. 
Kintzing  &  Co.,  and  further  pleads  an  adjudication  of 
bankruptcy  of  C.  S.  Kintzing  since  commencement  of  this 
action. 

These  denials  raise  no  issue  as  to  the  fact  of  partnership, 
or  the  alleged  liability  of  the  defendants  as  partners.  The 
new  matter  is  insufficient,  as  it  states  facts  which  legally 
constitute  a  partnership,  and  in  order  that  the  special  agree- 
ment between  defendants  as  to  individual  liability  should 
affect  the  plaintiff",  it  was  necessary  to  aver  that  plaintiff  had 
notice  or  actual  knowledge  of  such  agreement,  before  the 
liability  alleged  in  the  complaint  accrued.  The  allegation 
that  plaintiff  had  such  knowledge  ;' while  in  the  employ- 
ment of  B.  C.  Kintzing  &  Co.,"  is  too  vague,  and  being 
taken  most  strongly  against  the  pleader,  is  insufficient. 

Under  the  plea  of  bankruptcy  of  C.  S.  Kintzing,  the  court 
directed  a  stay  of  proceedings  as  to  him,  and  rendered  a 


296  COLUMBIA  MINING  Co.  -o.  HOLTEE.       [Jan.  T. 

judgment  in  favor  of  plaintiff  for  the  amount  claimed,  to 
be  enforced  against  the  partnership  property  of  B.  C.  Kintz- 
ing  &  Co.,  and  the  individual  property  of  B.  C.  Kintzing. 
If  this  is  error,  it  is  not  such  as  either  appellant  can  com- 
plain of. 

Judgment  affirmed. 


COLUMBIA  MINING  COMPANY,  appellant,  v.  HOLTEB  et  al., 

respondents. 

WATER  RIGHTS — change  of  point  of  diversion.  If  H.  appropriated  the  water 
of  a  creek  at  a  certain  point  in  1865,  and  C.  appropriated  the  same  water 
above  H.,  in  1867,  for  the  use  of  a  mill,  and  returned  the  water  into  the  creek, 
so  that  H.  had  the  benefit  thereof,  H.  has  no  right  to  change  his  point  of 
diversion  of  the  water  in  1869,  and  appropriate  it  above  C.'s  mill,  and  thereby 
deprive  C.  of  the  use  of  the  water. 

WATEK  RIGHTS  —  claim  to  water  —  appropriation — possession.  A  party  who 
intends  to  claim  water  must  appropriate  the  same  with  reasonable  diligence 
by  some  known  means,  and  at  a  certain  point ;  a  declaration  of  such  a  claim, 
without  any  acts  of  possession,  is  insufficient. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  facts  are  stated  in  the  opinion.  The  judgment  was 
rendered  in  the  district  court,  at  the  July  term,  1870,  by 
SYMES,  J. 

W.  F.  SANDERS  and  CHUMASERO  &  CHAD  WICK,  for  appel- 
lants. 

The  answer  does  not  deny  the  allegation  of  the  complaint, 
that  appellant  and  its  grantors,  from  March  28,  1865,  to  the 
commencement  of  this  action,  had  enjoyed  the  water  speci- 
fied. Appellant  would  be  protected  in  its  use  for  four  years 
by  the  statute  of  limitations.  Acts  1865,  466;  Union  W. 
Co.  v.  Crar;/,  25  Cal.  504 ;  American  Co.  v.  Bradford,  27 
id.  360  ;  Lick  v.  Diaz,  80  id.  65. 

This  was  an  equity  case.     GuJe  v.  Tuolumne  W.  Co.,  14 


1G71.]  COLUMBIA  MINING  Co.  v.  HOLTER.  297 

Cal.  25 ;  Par~ke  v.  Killiam,  8  id.  77.  The  court  properly 
sought  to  find  four  facts  from  the  jury,  the  date  of  each 
appropriation  and  the  place.  Respondents  could  not  change 
their  point  of  appropriation  after  October,  1865,  to  the  injury 
of  intervening  locators.  Suite  C.  &  D.  Co.  v.  Vaughn,  11 
Cal.  143 ;  Kidd  v.  Laird,  15  id.  161 ;  Nevada  W.  Co. 
v.  Powell,  34  id.  109  ;  Davis  v.  Gale,  32  id.  26.  Respond- 
ents, in  May,  1869,  went  two  miles  above  their  location,  in 
September,  1865,  and  attempted  to  change  the  point  of 
appropriation  to  the  injury  of  appellant. 

The  general  verdict,  being  inconsistent  with  the  special 
findings  and  admitted  facts,  should  have  been  set  aside. 
Civ.  Prac.  Act,  §  175. 

A  subsequent  appropriator,  higher  up  the  stream,  who 
diverts  the  water  and  returns  it  to  the  first  but  lower  appro- 
priator, is  not  liable  to  an  action  by  the  first  appropriator. 
Union  W.  Co.  v.  Crary,  25  Cal.  504. 

Water  collected  in  pipes  and  separated  from  the  original 
source  of  supply  is  personal  property.  Heyneman  v. 
Blake,  19  Cal.  579. 

The  refusal  of  the  jury  to  allow  damages  does  not  affect 
the  right  of  appellants  to  the  abatement  of  a  nuisance  or 
the  costs.  Sto.  on  Eq.  Jur.,  §,§  921-920  ;  Hudson  v.  Doyle, 
0  Cal.  101 ;  Courtwright  v.  B.  R.  &  A.  ^Y.  &  M.  Co.,  30  id.  570. 

A  judgment  will  be  set  aside  without  a  motion  for  a  new 
trial,  if  it  cannot  stand  from  the  proof  or  conceded  facts. 
A  motion  to  modify  the  findings  enables  the  court  to  look 
into  the  evidence  for  facts.  San  ford  v.  Elglith  Are.  R.  R. 
Co.,  23  N.  Y.  343  ;  Purchase  v.  Mattison,  15  Abb.  Pr.  402  : 
3  Estee's  PI.  728,  §§  237-239. 

E.  \V.  &  J.  K.  TOOLE,  for  respondents. 

The  statement  cannot  be  considered  in  connection  with 
the  instructions.  No  exception  is  made  a  part  of  the  judg- 
ment roll.  Civ.  Prac.  Act,  £  203 ;  Newell  v.  Doty.  33 
N.  Y.  83.  No  exception,  except  a  general  one,  is  assigned 
in  the  statement.  Jones  v.  Osgoort.  0  X.  Y.  233  :  Caldircll 
v.  MurpJty,  11.  id.  410:  Dunckel  v.  TJVMv.  id.  -!2o  :  La  it- 
ting  v.  WiswalL  5  Denio,  213;  3  Estee's  PI.  OSS,  §  HO 
VOL.  1—38. 


298  COLUMBIA  MISIXG  Co.  ».  HOLTER.       [Jan.  T., 

Appellant' s  use  of  the  water  was  inconsistent  with  respond- 
ents' right,  and  under  protest.  The  statement  does  not  bring 
up  all  the  evidence,  and  the  verdict  of  the  jury  must  be  sup- 
ported. The  court  cannot  consider  the  question  of  the  suffi- 
ciency of  the  evidence  to  justify  the  verdict.  3  Estee's  PI 
727,  §  236  :  Gifford  v.  CarmU,  29  Cal.  589  ;  Bernal  v.  Gleim, 
33  id.  669. 

A  denial  of  appellant's  title  to  the  water,  or  any  of  its 
rights  and  equities,  puts  appellant  on  proof.  Marshall 
v.  Shafter,  32  Cal.  176. 

No  estoppel  or  statute  of  limitations  is  pleaded.  No 
damage  is  found.  This  is  necessary  to  entitle  appellant  to 
a  perpetual  injunction.  To  this  extent,  the  general  verdict 
is  conclusive,  as  it  is  only  set  aside  to  the  extent  of  conflict 
with  the  special  findings. 

WARREN,  C.  J.  This  is  an  action  for  damages,  for  diversion 
of  the  waters  of  the  west  branch  of  Oro  Fino  creek,  by  de- 
fendants, and  praying  a  perpetual  injunction  against  them. 
The  answer  does  not  sufficiently  deny,  under  the  well- 
established  rules  of  pleading,  any  material  allegation  of  the 
complaint,  but  sets  up  a  prior  appropriation,  by  grantors 
of  defendants,  under  which  the}' justify  the  diversion. 

The  cause  was  tried  before  a  jury,  who  found  a  general 
verdict  for  defendants,  and  also  a  special  verdict.  Appel- 
lant moved  the  court  to  set  aside  the  general  verdict,  and  for 
a,  judgment  and  decree  of  injunction  upon  the  special  ver- 
dict, which  was  overruled,  and  a  judgment  rendered  for 
defendants,  and  a  dissolution  of  the  restraining  order  in 
force.  Appellant  appeals  from  the  judgment,  and  among 
other  errors  assigns  this  action  of  the  court,  and  embodies 
the  evidence  in  his  statement.  On  appeal  from  a  judgment, 
this  court  will  look  into  the  evidence  for  an  explanation  of 
errors  assigned,  and  we  are  of  opinion  that  the  evidence 
preserved  in  this  case,  in  connection  with  the  pleadings  and 
the  special  findings  of  the  jury,  disclose  error  in  entering 
the  judgment  under  the  general  verdict. 

The  jury  find,  specially,  that  defendants'  grantors  appro- 


1871.]  COLUMBIA  MINING  Co.  c.  BOLTER.  299 

priated  the  water  in  question,  in  October,  1865,  and  that 
the  point  at  which  they  diverted  it  from  its  channel  was 
one  mile  and  a  quarter  below  Uriionville.  They  also  find 
that  the  grantors  of  plaintiff  appropriated  said  waters  in 
September,  1867,  and  that  they  took  possession  of  same  at 
a  point  about  one  hundred  yards  above  the  mill  of  the 
Columbia  Mining  Company.  The  evidence,  explanatory 
of  this  finding,  shows  the  facts  to  be  that  defendants  derive 
title  through  one  Laird,  who,  in  October,  1865,  posted  a 
written  notice  on  the  creek,  claiming  all  the  waters  of  the 
f. reek  and  its  tributaries,  for  mining  and  other  purposes,  and 
thereafter  with  due  diligence  erected  a  dam  and  reservoir  at 
the  point  where  his  notice  was  posted,  and  constructed 
ditches  and  flumes  from  said  point  to  convey  the  water  for 
the  purposes  indicated.  That  plaintiff's  grantors  erected 
their  mill  and  appropriated  said  waters  for  its  operation  in 
September,  1867,  at  a  point  on  said  creek,  one  mile  and  a 
quarter  above  the  point  where  Laird's  notice  was  posted. 
;md  his  reservoir  and  ditches  constructed,  and  continued 
thereafter  to  use  such  water  until  May  28,  1869,  when  defend- 
ants diverted  the  same  at  a  point  above  plaintiff's  mill,  as 
alleged  in  the  complaint  and  admitted  in  their  answer.  That 
plaintiff  was  charged  with  notice  of  defendants1  claim,  prior 
:o  any  appropriation  for  the  purposes  of  said  mill,  and  to 
!  he  construction  of  the  mill.  That  no  work  was  done  upon 
nor  water  actually  diverted  from  said  creek,  by  or  on  behalf 
i>f  the  defendants,  at  any  point  as  high  up  the  creek  as  the 
noint  of  plaintiff's  appropriation,  until  after  plaintiff's  said 
appropriation,  and  that  plaintiff,  after  using,  returned  said 
\vater  to  its  natural  channel,  at  a  point  above  any  work  done 
l»y  defendants  or  their  predecessors  in  interest. 

There  is  some  evidence  concerning  an  action  brought  by 
Laird  against  one  Pearce,  for  the  diversion  of  the  water  in 
•  ••mtroversy  in  this  action,  and  that  a  recovery  was  had  by 
Laird  therefor  ;  but,  as  no  privity  whatever  is  shown  between 
!*  -an-e  and  the  plaintiff  in  this  action,  or  his  grantors,  the 
hitter  is  not  affected  by  such  proceeding. 

Examining  the  special  findings  in  the  light  of  this  evidence. 


300  RANKIN  v.  CAMPBELL.  [Jan.  T.. 

it  is  clear  that  the  appropriation  by  defendants'  grantors, 
found  to  have  been  made  in  1865,  at  a  point  below  that  at 
which  they  iind  plaintiff' s  appropriation  to  have  been  made 
in  1867,  could  not  justify  the  diversion  made  by  defendants 
in  1869,  complained  of  by  plaintiff.  The  notice  of  Laird's 
claim  was  of  no  validity.  An  intention  to  appropriate  water, 
to  be  effectual  as  against  other  parties,  must  be  carried  into 
actual  execution  with  all  reasonable  diligence,  by  som<j 
known  and  tangible  means,  and  at  some  designated  point. 
By  appropriation,  a  man  acquires  only  the  right  of  posses- 
sion and  user  of  water,  qualified  by  the  right  of  others  to 
its  use,  in  such  manner  as  shall  not  materially  diminish  or 
deteriorate  it,  at  the  place  of  his  appropriation,  in  quantity 
or  quality.  A  declaration  of  a  claim  to  water,  unaccom- 
panied by  acts  of  possession,  is  wholly  inoperative  as 
ngainst  those  who  shall  legally  proceed  to  acquire  a  right 
to  the  same. 

The  special  findings  conflict  with  the  general  verdict,  and 
the  latter  must  be  set  aside.  The  judgment  must  be  reversed 
and  the  cause  remanded,  with  directions  to  the  court  below 
to  (Miter  a  judgment  upon  the  special  findings  of  the  jury,  foi 
nominal  damages  in  favor  of  the  plaintiff,  and  a  decree  for 
perpetual  injunction  as  prayed  in  the  complaint. 

Judgment  reversed. 


,  appellant,  y.  CAMPBELL  et  al,,  respondents. 

PRACTICE — verbal  stipulation.    This  court  will  not  consider  a  verbal  stipula- 
tion between  the  attorneys  of  the  parties. 

Appeal  from  the  Third  District,  Meagher  County. 

Tins  action  was  tried  in  the  district  court  by  SYMES,  J 
The  decision  of  the  court  renders  unnecessary  a  report  of 
the  facts  and  arguments. 


1871.]  STEWART  o.  MILLER.  301 

CHUMASERO  &  CHADWICK,  for  appellant. 

SHOBER  &  LOWRY,  for  respondents. 

WARREN,  C.  J.  In  this  case  there  is  no  statement  on 
motion  for  a  new  trial  or  on  appeal.  The  affidavits  pre- 
sented, relating  to  a  verbal  stipulation  between  the  attor- 
neys of  the  parties,  cannot  be  considered  in  this  court,  and 
the  judgment  roll  disclosing  none  of  the  errors  assigned, 
the  judgment  below  is  affirmed. 

Judgment  affirmed. 


STEWART  et  al.,  respondents,  v.  MILLER  et  al.,  appellants. 

PRACTICE  —  oral  agreements.  The  oral  agreements  of  attorneys  should  be  dis- 
regarded, although  the  clerk  has  entered  them  in  the  transcript  on 
appeal. 

EVIDKNCE IN  SUIT  ON  INJUNCTION  BOND  —  damages.  In  an  action  upon  an 
injunction  bond,  the  obligors  may  prove  the  facts  that  entitle  them  to  the 
injunction  in  mitigation  of  damages,  if  the  injunction  has  been  dissolved 
before  the  merits  of  the  case  have  been  adjudicated. 

DISSOLUTION  OF  INJUNCTION  —  evidence.  The  dissolution  of  an  injunction  be- 
fore the  case  has  been  finally  determined,  is  prima  facie  evidence  that  the 
injunction  was  improperly  granted. 

PARTIES  TO  BONDS  —  damage*  apportioned.  All  the  parties  to  a  bond  that  has 
been  executed  jointly  should  be  brought  into  court,  so  that  the  damages 
claimed  can  be  apportioned. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

STEWART,  and  eleven  other  plaintiffs,  brought  this  action 
in  August,  1869,  against  Miller  and  J.  B.  Hyde,  to  recover 
damages  sustained  by  the  granting  of  an  injunction.  The 
case  was  tried  by  a  jury  in  March,  1870,  and  a  verdict  re- 
turned for  plaintiffs  for  §1 ,750.  On  the  trial  the  defendants, 
after  the  plaintiffs  had  closed  their  evidence,  moved  the 
court,  SYMKS,  J.,  to  continue  the  cause,  and  order  other 
parties  to  be  brought  in,  on  the  ground  that  a  complete 
determination  of  the  action  could  not  be  had  without  their 


302  STEWAKT  c.  MILLER.  [Jan.  T., 

presence.     The  motion  was  overruled  and  defendants  ex- 


The  defendants  offered  in  evidence  the  amended  com- 
plaint, the  answer  to  the  same,  and  the  injunction  in  another 
action,  for  the  purpose  of  showing  the  following  facts  : 
That  the  cause  of  action  involved  in  the  case,  in  which  the 
injunction  bond  sued  on  had  been  executed  by  defendants. 
had  been  transferred  to  another  suit,  and  that  the  same 
issues  were  still  pending  between  the  same  parties  ;  and 
that  the  injunction  had  also  been  transferred  and  was  still 
in  existence. 

The  defendants  also  offered  in  evidence  the  findings  of 
the  jury  and  the  decree  in  another  action,  and  also  produced 
certain  witnesses  for  the  purpose  of  showing  that  the  parties 
who  procured  the  injunction,  that  was  issued  on  the  filing 
of  the  bond  sued  on.  were  equitably  entitled  to  the  same. 
to  protect  them  in  the  enjoyment  of  their  rights  to  certain 
•'springs,"  and  that  the  rights  of  the  parties  had  not  been 
determined,  as  to  the  subject-matter  of  the  injunction,  at 
the  time  the  injunction  was  dissolved  and  this  action  was 
brought.  The  foregoing  evidence  was  excluded  by  th^ 
court.  SYMES.  J..  and  defendants  excepted. 

E.  W.  &  J.  K.  TOOLE.  for  appellants. 

The  complaint  shows  that  respondents  do  not  seek  to 
recover  the  damages  sustained  by  six  other  co-obligees  on 
the  bond  sued  on.  The  court  should  have  required  th<> 
other  parties  to  be  brought  in.  Civ.  Prac.  Act,  §§  14,  17.  The 
evidence  shows  that  about  one-half  of  the  respondents  sold 
out  their  interest  in  the  damages  recoverable  on  the  bond 
sued  on.  before  this  suit  was  commenced,  to  persons  wh<' 
were  not  parties  to  the  suit.  Every  action  shall  be  prosp- 
cuted  in  the  name  of  the  real  party  in  interest.  Civ.  Prac. 
Act,  §  4.  The  parties  not  joined  may  still  sue  for  their  por- 
tion of  the  damages  recoverable  on  the  bond.  People  \. 
Love,  25  Cal.  520  :  Fowler  v.  Frisbie.  37  id.  34  :  Hill,  on 
Tnj.  64,  §  26  ;  Civ.  Prac.  Act.  §  17  ;  Prader  v.  Grimm.  28 
Cal.  11  :  Kwnmfrs  v.  Fari'sTi.  10  id.  347:  Baiter  v. 


1871.]  STKWAKT  v.  MILLKR.  308 

7  id.  551  ;  Voorkies'  Code,  265,  b,  c;  Heywood  v.  City  of 
Buffalo,  14  N.  Y.  506. 

The  respondents  should  have  shown  the  portion  of  the 
damages  recoverable  to  which  they  were  entitled.  Whitney 
v.  Stark i  8  Cal.  514  ;  Septembre  v.  Putnam,  30  id.  497. 

The  reason  for  dismissing  the  suit  and  dissolving  the  in- 
junction was  explained  by  the  order  of  the  court  in  the 
premises.  It  was  for  the  purpose  of  trying  the  merits  of 
both  in  the  same  action  and  consolidating  them.  Civ.  Prac. 
Act,  §  497. 

Money  is  recoverable  upon  an  injunction  bond  on  the  dis- 
missal of  the  action,  on  the  theory  that  it  is  an  abandon- 
ment of  the  rights  of  the  plaintiff  to  enjoin  the  defendant. 
Tn  this  case  the  order  of  the  court  shows  that  the  injunction 
was  re-instated.  Hill  on  Inj.  67;  Gelston  v.  Whites  idea, 
3  Cal.  309  ;  Hicks  v.  Michael,  15  id.  107  ;  Fowler  v.  FrisUe, 
37  id.  34  ;  Shearman  v.  New  York  C.  M.,  11  How.  Pr.  270  ; 
Methodist  Churches  v.  Barker,  18  N".  Y.  463. 

A  party  must  prove  his  title  to  property  on  which  lie 
alleges  his  damages  to  have  accrued,  and  this  title  can  be 
put  in  issue  in  mitigation  of  damages.  A  voluntary  dis- 
missal of  a  suit  does  not  estop  the  party  from  showing  his 
title  to  the  property,  when  that  title  may  be  the  essential 
element  on  which  a  portion  of  the  damages  accrued.  It 
cannot  be  contended  that  a  person  who  is  committing  a  tres- 
pass to  the  property  of  another  is  damaged,  by  being  pre- 
vented in  so  doing.  The  dismissal  of  a  suit  does  not  become 
an  adjudication  on  the  title,  and  does  not  give  a  defendant, 
upon  the  dissolution  of  an  injunction,  damages  he  has  not 
sustained. 

Cin'MASERo  &  CHADWICK  and  SHOBEK  &  LOWKY.  for  re- 
spondents. 

The  bill  on  which  the  injunction  was  granted  was  finally 
dismissed  and  the  injunction  dissolved.  That  was  a  final 
determination  of  the  cause,  and  an  action  would  lie  on  the 
undertaking  in  the  cause  for  any  damages  sustained 
l>y  ihe  parties  restrained.  Hill,  c.n  Inj.  1(>3,  £  <H  ;  J/>/7/o 


304  STEWART  o.  MILLED.  [Jan.  T., 

dist  Churches  v.  Barker,  18  N.  Y.  463  ;  Dowling  v.  PolacJc, 
18  Cal.  625. 

When  a  defect  of  parties  is  apparent  on  the  face  of  the 
complaint,  the  objection  must  be  taken  advantage  of  by 
demurrer.  When  it  is  not  apparent  on  the  face  of  the  com- 
plaint, the  objection  must  be  taken  by  answer.  Voorhies' 
Code,  §  148  and  n.;  Civ.  Prac.  Act,  §  45  ;  Dunn  v.  Tozer, 
10  Cal.  167 ;  Borroughs  v.  Lott,  19  id.  125  ;  Tissot  v.  Throck- 
morton,  6  id.  471. 

The  jury  were  instructed,  at  the  instance  of  appellants, 
that  respondents  could  only  recover  the  actual  damages 
they  sustained  in  consequence  of  the  injunction.  The  re- 
spondents were  a  mining  company,  and  the  damages  they 
sustained  were  joint,  and  the  action  was  prosecuted  in  the 
name  of  the  real  party  in  interest. 

WARREN",  C.  J.  In  this  transcript  of  the  record  there 
appeared  a  clerk's  entry  to  the  effect  that  ''the  statement 
upon  motion  for  a  new  trial  being  settled  this  day  by  the 
court,  the  respective  parties  waive  the  necessity  of  engrossing 
the  same  to  be  used  upon  the  hearing  of  the  said  motion,' '  and 
the  transcript  contains  what  purports  to  be  the  instructions 
excepted  to,  and  the  evidence  given  and  offered  on  the  trial. 
The  cause  was  argued  and  submitted  in  this  court  at  the  last 
term,  and  in  lieu  of  perfecting  the  transcript  by  procuring 
the  omitted  certificate  of  settlement  of  the  statement,  and 
objections  to  the  transcript  being  waived  by  agreement  of 
the  parties  in  this  court,  the  cause  was  heard,  by  leave  of 
court,  upon  the  basis  of  the  statement  appearing  in  the 
transcript,  as  though  properly  certified.  While  oral  agree- 
ments of  attorneys  are  to  be  disregarded,  and  the  entry  of 
them  by  a  clerk  gives  them  no  additional  validity  so  as  to 
entitle  them  to  notice  on  appeal,  the  respondents  in  this  case 
having  admitted  the  statement  in  this  transcript  to  be  the  one 
settled  by  the  judge  below  and  referred  to  on  the  motion  for 
a  new  trial,  and  the  cause  having  been  submitted  upon  this 
basis,  we  will  consider  the  errors  assigned  upon  it,  although 
the  practice  is  bad  and  not  to  be  regarded  as  precedent. 


1871.]  STEWART  v.  MILLEK. 

The  action  is  brought  upon  an  injunction  bond.  The 
statement  shows  that  appellants  offered  in  evidence  on  the 
trial  the  record  of  proceedings  had  in  the  action  in  which 
the  bond  was  given  for  the  purpose  of  showing  that  the  action 
was  dismissed  and  the  injunction  dissolved  for  the  reason 
that  another  action  theretofore  commenced  was  pending  and 
undetermined  in  the  same  court  between  the  same  parties 
and  involving  the  same  subject-matter  ;  and  that  the  court, 
upon  such  dismissal  and  dissolution,  holding  that  the  appli- 
cation for  the  injunction  sought  should  have  been  made  in 
the  original  action  and  not  in  a  separate  and  independent 
action,  by  order  permitted  the  complaint  filed  in  the  latter 
suit  to  stand  as  an  affidavit  for  an  injunction  in  the  original 
action,  and  the  summons  to  be  regarded  as  a  notice  to  de- 
fendants of  such  application  :  all  of  which  evidence  the 
court  excluded  from  the  jury,  to  which  ruling  appellants 
fxcepted.  In  this  the  court  erred. 

Where  the  dissolution  of  an  injunction  is  not  consequent 
upon  a  final  determination  or  adjudication  upon  the  merits 
of  the  action,  the  obligors  in  the  bond  may,  according  to 
rhe  weight  of  authority  and  principle,  show  the  facts  and 
circumstances  entitling  them  to  the  injunction,  if  not  in  full 
defense,  at  least  in  mitigation  of  damages  in  an  action  upon 
the  bond,  the  order  of  dissolution  being  in  such  cases  only 
prima  facie  evidence  that  the  injunction  was  improperly 
issued.  This  has  been  held  otherwise  in  some  of  the  cases 
cited,  but  seems  founded  in  sound  principle,  as  otherwise, 
the  obligees  in  a  bond  given  in  a  cause  in  which  the  action 
was  dismissed  or  the  injunction  dissolved,  upon  some  formal 
matter,  although  the  plaintiff  was  in  equity  entitled  to  the 
protection  demanded,  would,  in  an  action  upon  the  bond, 
stand  upon  the  same  footing  in  respect  to  damages  recov- 
erable, as  though  the  injunction  was  obtained  without  a 
shadow  of  equity,  or  even  maliciously,  and  through  per- 
jury. This  we  cannot  believe  to  be  the  law,  and  the  evi- 
dence offered  in  this  action  should  have  been  admitted. 

The  bond,  too,  having  been  executed  by  the  defendants  to 
the  plaintiffs  below  jointly,  it  was  necessary  to  a  complete 
VOL.  I.  — 39. 


306  BOUCHER  v.  MULVERHILL.  [.Jan.  T., 

determination  of  the  rights  of  the  parties,  that  all  should 
have  been  in  court,  in  order  to  apportion  damages  claimed, 
and  if  any  of  the  obligees  refused  to  join  as  plaintiffs,  the 
court,  upon  the  showing  made,  should  have  ordered  them 
brought  in  as  defendants. 

The  judgment  is  set  aside  and  the  cause  remanded  for  a 
new  trial. 

Exceptions  sustained. 


BOUCHER  et  al.,  respondents,  v.  MULVERHILL,  appellant. 

MINING  PROSPECTING  PARTNERSHIP  —  how  formed  —  rights  of  partners.  Au 
agreement  made  between  parties,  by  which  some  of  them  prospect  for  gold, 
and  the  others  furnish  money  and  provisions,  for  which  they  are  to  receive 
interests  in  the  mining  grounds  that  may  be  discovered,  constitutes  a  pros- 
p^cMug  partnership,  and  those  who  furnish  the  money  and  provisions  are 
entitled  to  pre-empt  and  hold  mining  claims  under  the  laws  of  a  district, 
which  provide  that  claims  shall  be  allowed  the  discoverers  for  their  pros- 
pecting partners. 

M  INING  PROSPECTING  PARTNERSHIP  —  rules.  A  mining  prospecting  partnership 
is  not  governed  by  the  technical  rules  of  the  law  of  commercial  partnership. 

MINING  PROSPECTING  PARTNERSHIP  —  mining  law  regulating,  valid.  The  mining 
law  of  a  district,  which  allows  those  who  furnish  money  and  provisions  to 
the  discoverers  of  placer  gold  mines,  to  hold  claims  without  personally  pre- 
empting them,  is  not  against  public  policy  and  should  be  upheld. 

PRACTICE — instructions  that  mislead  not  given.  The  court  will  not  give  an 
instruction,  that  is  correct,  if  it  will  mislead  the  jury. 

Appeal  from  Second  District,  Missoula  County. 

THE  facts  are  stated  in  the  opinion.  The  eighteenth 
section  of  the  mining  laws  of  the  Barrette  district,  referred 
to  in  the  opinion  and  briefs,  is  as  follows  :  "That  no  claim 
shall  be  recognized  as  legally  held,  unless  the  prior  claimant 
has  personally  pre-empted  the  same,  with  the  exception  of 
three  claims  allowed  the  discoverers  for  ~heir  prospecting 
partners." 

The  case  was  tried  in  June,  1870,  before  KNOWLES,  J. 


1871. ]  BOUCHER  v.  MULVEBHILL.  307 

CLAGETT  &  DIXON,  for  appellant. 

The  respondents  claimed  under  the  exception,  in  section 
18  of  the  laws  of  Barrette  district,  as  prospecting  partners 
of  the  discoverers.  There  was  no  evidence  that  respondents 
were  the  persons  to  whom  this  exception  applied.  The 
claims  were  recorded  the  day  after  the  laws  were  passed. 

Respondents  were  not  prospecting  or  other  partners  of 
the  discoverers.  If  they  had  been  such  partners,  the  record 
of  location  should  have  shown  it,  and  the  location  should 
have  been  in  their  names,  so  that  third  parties  would  know 
to  what  parties  section  18  applied. 

Respondents  never  had  actual  possession  of  the  ground 
in  dispute  ;  they  claimed  by  constructive  possession  only, 
and  did  not  bring  themselves  within  the  laws.  They  were 
not  in  the  district  when  their  claims  were  located.  Appel- 
lant proved  location  and  actual  possession  of  the  ground, 
and  work  and  money  expended  on  it. 

The  court  erred  in  leaving  it  to  the  jury  to  find  whether 
the  claim  in  dispute  was  located  according  to  the  laws  of 
the  district,  and  refusing  to  instruct  them  as  to  what  the 
mining  laws  required  to  make  a  location  good.  The  court 
erred  in  refusing  to  instruct  the  jury  as  to  the  legal  effect 
and  meaning  of  the  mining  laws,  and  what  it  was  necessary 
for  the  respondents  to  show  to  bring  themselves  within  the 
laws.  The  construction  of  mining  laws  is  for  the  court  and 
not  the  jury.  Fairbanks  v.  Woodhouse,  6  Cal.  433. 

A  mining  law,  allowing  every  discoverer  to  locate  ground 
for  every  one  who  might  have  furnished  him  means  or  assist- 
ance to  prospect,  would  be  contrary  to  general  law  and 
public  policy,  and  void. 

MAYIIEW  &  McMuBTRY,  for  respondents. 

Miners  have  the  right  to  pass  laws  for  locating,  holding 
and  working  mines,  if  they  are  reasonable  and  do  not  con- 
flict with  the  laws  of  the  Territory  or  United  States.  Eng- 
lish v.  Johnson,  17  Cal.  107.  The  eighteenth  section  is 
reasonable  and  not  against  public  policy.  Those  who  ren- 
der material  aid  to  Drospectors  for  mines  should  be  encour 
oy  receiving  claims,  if  they  are  <us 


308  BOUCHER  o.  MULVERUILL.  [Jan.  T. 

Mining  ruled  should  be  liberally  construed.  The  location 
need  not  show  that  the  claims  were  taken  up  by  the  discov- 
erers for  respondents.  The  intention  of  the  miners  must  be 
considered.  Appellant's  rights  were  not  injured  by  the 
location  of  the  ground  in  dispute,  in  the  names  of  re- 
spondents. 

The  agreement  of  the  respondents  and  discoverers  consti- 
tuted a  mining  adventure,  in  which  there  can  be  a  partner- 
ship. Sauntry  v.  Dunlap,  12  Wis.  364. 

The  description  of  respondents,  as  prospecting  partners 
in  the  mining  laws,  is  immaterial.  If  the  respondents  are 
the  parties  that  the  miners  intended  to  benefit  by  section  18, 
the  j  udgment  is  correct.  The  question  as  to  whether  respond- 
ents were  partners,  according  to  the  strict  legal  definition  of 
the  word  "  partnership,  "cannot  avail  the  appellant.  Evidence 
is  admissible  to  identify  particular  persons.  2  Phil.  Ev.  711. 

Section  18,  of  the  laws  of  the  Barrette  district,  was  rightfully 
made  by  the  miners.  Morton  v.  Solambo  C.  M.  Co.,  26  Cal. 
527 ;  St.  John  v.  Kidd,  26  id.  272 ;  Core  v.  McBryre,  18 
id.  582. 

If  the  court  had  given  all  the  instructions  asked  for  by 
appellant,  the  verdict  would  have  been  the  same. 

SYMES,  J.  This  was  an  action  for  the  possession  of  a 
mining  claim.  Plaintiffs  alleged  that  they  were  the  owners 
and  entitled  to  the  possession  of  claim  No.  5,  in  Barrette  dis- 
trict, Missoula  county,  Montana ;  that  in  December,  1869, 
defendant  entered  upon  said  claim  and  wrongfully  withheld 
it  from  plaintiffs ;  that  the  claim  contained  gold,  and  ask 
for  possession  of  said  claim,  damages,  and  a  restraining 
order  until  the  termination  of  the  suit. 

Defendant  answered  and  denied  that  plaintiffs  were  the 
owners  or  entitled  to  possession  of  said  mining  claim  ;  ad- 
mitted that  he  and  one  Halloran  withheld  said  claim  from 
plaintiffs ;  alleged  ownership  and  possession  of  said  claim 
since  the  10th  of  December,  1869,  and  that  it  was  unappro- 
priated before  that  time  ;  denied  that  he  was  working  the 
vlaim.  insolvency,  and  ask  judgment  for  costs. 


1871. J  Boi'ciiKK  r.  MULVKKIIILL.  309 

The  case  was  tried  at  the  June  term  of  the  Missoula  county 
district  court,  and  verdict  found  and  judgment  rendered 
for  plaintiffs.  Motion  for  new  trial  overruled,  and  appeal 
taken  from  order  overruling  motion,  and  the  judgment. 

Appellant  asks  for  reversal  of  the  case  for  the  reasons 
that  the  verdict  was  against  the  law  and  the  evidence,  and 
for  errors  of  the  court  below  in  giving  and  refusing  instruc- 
tions. 

It  appears  by  the  evidence  preserved  in  the  statement, 
that  one  Barrette  and  Lowthier  were  the  discoverers  of  Bar- 
rette  district  in  Cedar  Creek,  Missoula  county,  Montana : 
that  for  some  time  before  the  discovery  the  plaintiffs  had 
furnished  said  Barrette  and  Lowthier  with  money  and  pro- 
visions to  prospect  with,  and  had  been  working  to  get  money 
fo  keep  them  prospecting  ;  that  previously  to  the  discover}" 
plaintiffs  had  an  agreement  and  understanding  with  said 
Barrette  and  Lowthier,  by  which  they  were  to  locate  claims 
for  them  when  they  made  a  discovery  ;  that  $200  or  $300 
was  so  furnished  and  was  being  used  by  said  discoverers 
when  they  discovered  Cedar  Creek  gold  mine.  Section 
18  of  the  mining  laws  of  Barrette  district  provides  thai 
no  claim  can  be  legally  held  unless  the  prior  claimant  has 
personally  pre-empted  the  same,  except  three  claims  to  be 
allowed  the  discoverers  for  their  prospecting  partners. 

Barrette  and  Lowthier,  as  the  discoverers,  located  said 
claim  5  for  the  plaintiffs  with  two  others,  and  they  claim 
the  possessory  right  and  title  to  the  same  under  said  section 
18  of  the  mining  laws  of  said  district. 

Defendant  came  into  Cedar  Creek  shortly  after  the  dis- 
covery, and  finding  said  claim  unoccupied  located  the  same 
and  attempted  to  have  it  recorded,  but  the  recorder  refused 
to  record  it,  and  referred  defendant  to  said  section  18  of  the 
laws  to  show  him  that  plaintiffs  had  a  right  to  hold  it  under 
the  record  as  it  then  was. 

Tt  is  contended  by  appellant  that  plaintiffs  cannot  hold 
said  claim  under  said  mining  law,  because  the  evidence  does 
not  prove  or  show  that  plaintiffs  were  prospecting  partners 
of  the  discoverers  :  that  the  ngreement  and  understanding 


310  BOUCHER  v.  MULVERHILL.  [Jan.  T., 

between  them  did  not,  in  law,  form  a  prospecting  partner- 
ship. 

We  do  not  think  this  agreement  or  understanding  between 
hie  plaintiffs  and  the  discoverers  of  Cedar  Creek  gold  mine 
should  be  subjected  to  or  tested  by  the  technical  rules  of 
the  law  of  partnership.  It  is  the  spirit  and  policy  of  our 
mining  common  law,  sometimes  called,  to  enforce  the  rules 
and  regulations  of  miners,  arid  interpret  their  agreements 
made  under  such  rules,  according  to  the  real  intention  of 
the  miners,  when  they  do  not  conflict  with  positive  law  or 
public  policy.  What  kind  of  an  agreement  or  understand- 
ing did  the  miners  of  Cedar  Creek  intend,  and  to  whom 
did  they  refer  in  said  section  18  of  their  mining  laws? 
Manifestly,  from  the  evidence,  to  the  plaintiffs  in  this  case. 
There  is  no  dispute  but  that  said  Barrette  and  Lowthier  were 
the  discoverers,  that  plaintiffs  furnished  them  money  and 
provisions  for  some  time  before  the  discovery,  to  continue  to 
prospect  for  gold  :  and  that  they  were  living  on  these  pro- 
visions when  they  made  the  discovery.  Shall  the  court, 
because  said  section  18  of  the  laws  states  that  the  dis- 
coverers may  locate  three  claims  for  their  prospecting 
partners,  and  because  the  evidence  does  not  show  such  facts 
as  would,  under  the  rules  of  commercial  law,  constitute  a 
partnership,  say  that  the  plaintiffs  cannot  hold  their  claims 
under  said  mining  rule  or  law,  so  evidently  passed  for 
their  express  benefit  ?  We  think  not.  Laying  aside  the  gen- 
eral law  of  partnership,  and  inquiring  what  miners  ordinarily 
inean  by  the  term,  "  prospecting  partnership,"  we  are  of  opin- 
ion that  the  agreement  or  understanding,  between  the  said 
discoverers  of  Cedar  Creek  gold  mine  and  the  plaintiffs 
below,  was  understood  by  the  miners  of  Cedar  Creek  when 
they  adopted  said  section  18  of  their  laws,  to  constitute 
a  prospecting  partnership,  and  for  that  reason  they  desig- 
nated the  plaintiffs  as  the  discoverers'  prospecting  partners 
for  whom  they  might  locate  and  hold  three  claims. 

AVe  do  not  think  said  mining  rule  or  law  is  against  public 
policy,  as  contended  by  appellant.  On  the  contrary,  the 
agreement  by  \vhich  plaintiffs  furnished  to  said  discoverers 


1871.]  NOTEWAKK  c.  STERNS.  311 

money  and  provisions,  without  which  they  could  not  have 
continued  to  prospect  for  the  hidden  precious  metals,  but 
which  enabled  them  to  discover  a  rich  and  extensive  placer 
gold  mine,  thereby  adding  greatly  to  the  development  and 
wealth  of  our  Territory,  should  be  encouraged  ;  as  the  miners 
in  this  case  seem  to  have  appreciated  when  they  provided 
that  the  discoverers  might  locate,  and  the  parties  to  the 
agreement  might  hold  three  claims,  without  personally  pre- 
empting them. 

The  error  assigned  by  the  court's  refusing  to  give  the 
instruction,  that  if  the  jury  did  not  find  from  the  evidence 
that  plaintiffs  and  said  discoverers  were  prospecting  part- 
ners, they  would  find  for  the  defendant,  is  not  sufficient  to 
reverse  the  judgment.  While,  the  court  might  correctly 
have  given  this  instruction,  it  might  have,  if  given,  misled 
the  jury,  by  causing  them  to  test  the  said  agreement  in  this 
case  by  the  law  of  commercial  partnership. 

Judgment  and  order  of  the  court  below  affirmed. 

Judgment  affirmed. 


NOTEWATCK  et  al.,  appellants,  v.  STERNS,  respondent. 

PH  ACTICK  —  agreed  statement  no  part  of  judgment  roll.  An  agreed  statement  of 
facts,  on  which  the  case  was  tried  and  judgment  rendered  in  the  court  below, 
forms  no  part  of  the  record,  and  cannot  be  considered  on  appeal,  unless  it 
is  included  in  the  statement  on  a  motion  for  a  new  trial,  or  saved  in  a  bill 
of  exceptions,  or  certified  to  by  the  judge  as  having  been  used  on  the  trial. 

HvATUTOKi'  CONSTRUCTION  —  ad  of  congn'Ns  relating  to  rii/hts  of  ditch  owners 
Construed  —  Kvi/r.r-n'r/Mx.  Under  section  9  of  the  act  of  congress,  entitled 
"  An  act  granting  the  right  of  way  to  ditch  and  canal  owners,  over  the  pub- 
lic lands  and  for  other  purposes,"  approved  July  2(5,  18W>,  a  person  has  no 
right  to  go  upon  the  mining  ground  of  another  and  construct  his  ditch 
through  the  same,  without  the  consent  of  the  owner,  unless  he  shows  a 
necessity  therefor,  and  pays  the  damages  resulting  therefrom.  It  was  the 
intention  of  congress  to  give  the  owners  of  water-rights  the  right  of  way 
uver  tli>'  public  domain,  for  the  construction  of  ditches,  to  make  the  water 
available  for  use. 


NOTEWABE  v.  STERNS.  [Jan.  T., 

Appeal  from  the  First  District,  Madison  County. 

THE  facts  appear  in  the  opinion.  Judgment  was  rendered 
in  August,  1870,  by  WARREN,  J. 

W.  F.  SANDERS  and  H.  IS".  BLA.KE,  for  appellants. 

Congress  has  granted  the  appellants  the  right  of  way  for 
the  construction  of  their  ditch  over  the  public  domain  pos- 
sessed by  respondent.  14  U.  S.  Stat.  253,  §  9.  The  words 
"right  of  way,"  are  used  in  other  statutes  by  congress,  and 
are  to  be  construed  the  same.  14  U.  S.  Stat.  94,  §  1  ;  240, 
§  3  ;  290,  §  6  ;  294,  §  2  ;  Dor  an  v.  Central  P.  R.  Co.,  24  Cal. 
259.  This  law  is  to  be  construed  according  to  the  intent  of 
congress  and  the  object  in  view.  Sedgw.  Stat.  Law,  230, 
231 ;  Appeal  of  N.  B.  &  M.  R.  R.  Co.,  32  Cal.  515. 

The  title  of  this  act  shows  the  intent  "  for  the  construction," 
etc.  Sedgw.  Stat.  Law,  50,  51 ;  Flynn  v.  Abbott,  16  Cal. 
365.  Previous  to  the  passage  of  this  act,  the  owners  of 
ditches  had  no  right  to  construct  them  through  the  inclos- 
ures  of  others,  without  their  consent.  Yale  on  Water 
Rights,  211 ;  Burdge  v.  Underwood,  6  Cal.  45 ;  Weimer 
v.  Lowery,  11  id.  104. 

Congress  passed  this  act  to  give  parties  the  rights  pre- 
viously denied  by  the  courts  of  California.  Yale  on  Water 
Bights,  211,  212,  380.  The  decision  of  the  court  below 
renders  this  act  of  no  effect. 

The  respondent  has  no  title  or  interest  in  the  mining 
ground  described  in  the  pleadings  that  will  defeat  the  right 
of  way  of  appellants.  The  United  States  owns  said  ground 
and  can  make  regulations  and  grants  thereof.  Doran 
v.  Central  P.  R.  Co.,  24  Cal.  255,  259 ;  Hutton  v.  Frisbie, 
37  id.  490-493  ;  Rector  v.  Ashley,  6  Wall.  151 ;  Frisbie  v 
Whitney,  9  id.  192-197. 

The  statute  protects  the  rights  of  respondent  by  giving 
him  damages  for  injuries  committed  by  appellants. 

WORD  &  S  PR  ATT,  for  respondent. 

The  judgment  roll  is  all  that  can  be  reviewed  in  this 
appeal.  3  Estee's  PI.  490,  496.  The  agreed  statement  of 


1871.]  NOTEWARE  v.  STERNS.  313 

facts,  submitted  by  the  parties  upon  the  issues  raised  by 
the  pleadings,  forms  no  part  of  the  judgment  roll.  Civ. 
Prac.  Act,  §§  188,  189,  190,  203. 

Respondent  owned  the  mining  ground  which  appellants' 
ditcli  would  injure.  His  rights  thereto  and  the  water  had 
become  vested  under  the  law  of  congress,  and  appellants 
could  not  divest  him  of  his  rights  by  extending  their  ditch. 
Weimer  v.  Lowery,  11  Cal.  112  ;  Courtwright  v.  B.  R.  &  A. 
W.  &  M.  Co.,  30  id.  573  ;  Act  of  Congress  of  July  26,  1866. 
§  9;  Bear  R.  Co.  v.  York  M.  Co.,  8  id.  330;  Hoffman  v. 
Stone,  7  id.  48 ;  2  Sto.  on  Const,  1789  ;  Yale  on  Water 
Rights,  211,  217,  379. 

When  private  lands  are  to  be  taken  for  a  ditch,  proceed- 
ings must  first  be  had  to  obtain  the  right  of  way  under  the 
act  of  congress.  This  suit  is  no  such  proceeding.  Appel- 
lants admit  that  they  were  trespassers,  in  taking  possession 
of  respondent's  ground,  and  ask  a  court  of  equity  to  protect 
them  in  so  doing.  They  deprive  respondent  of  his  property 
without  "due  process  of  law."  2  Sto.  on  Const.  1787: 
Yale  on  Water  Rights,  211,  217;  Amend,  to  U.  S.  Const, 
art  5. 

SYMES,  J.  This  was  an  action  for  damages  and  a  per- 
petual injunction,  for  filling  up  and  injuring  the  water- 
ditch  of  plaintiffs.  The  complaint  alleged,  in  substance, 
that  plaintiffs  were  the  owners  of  a  certain  water-ditch  in 
Alder  gulch,  and  dams  and  reservoirs  ;  that,  for  the  pur- 
pose of  running  the  water  of  said  ditch  to  their  mining 
ground,  they  commenced  the  construction  of  an  additional 
ditcli  ;  that,  in  order  to  run  said  ditcli  to  their  mining 
ground,  it  was  necessary  to  construct  the  same  across  the 
mining  ground  of  defendant ;  that  they  went  upon  defend- 
ant's ground  and  constructed  some  portion  of  their  ditch, 
when  they  were  prevented  from  further  constructing  said 
ditch,  and  the  defendant  filled  up  the  same  ;  and  plaintiffs 
ask  judgment  for  damages,  and  that  defendant  be  restrained 
perpetually  from  interfering  witli  plaintiffs  constructing 
their  ditch  through  or  over  defendant's  mining  ground. 
VOL.  1  —  40. 


314  NOTKWARK  t\  STERXS.  [Jan.  T., 

Defendant  answered,  and  admitted  plaintiffs'  ownership 
of  ditch  and  water-right ;  alleged  that  he  was  the  owner  of 
450  feet  of  mining  ground  below  plaintiffs'  dam  and  reser- 
voir ;  that  it  was  worth  §2,000,  and  he  had  been  the  owner 
thereof  since  1863 ;  admitted  that  plaintiffs  went  on  his 
ground  and  attempted  to  dig  a  ditch,  without  his  consent, 
and  that  he  filled  up  said  ditch  ;  denied  that  he  interfered 
with  plaintiffs'  ditch,  except  on  his  own  ground :  further 
answering,  alleged  that  the  construction  of  said  ditch  over 
or  through  his  mining  ground  would  produce  great  and 
irreparable  injury  to  the  same,  and  render  it  wholly  worth- 
less ;  and  that  it  was  not  necessaiy  for  plaintiffs  to  con- 
struct said  ditch  across  his  ground  to  enable  them  to  save 
and  conduct  their  surplus  water  to  their  mining  ground ; 
that  constructing  said  ditch  across  his  ground  would  de- 
prive him  of  the  use  of  the  waters  of  Alder  gulch  for  mining, 
to  which  he  is  entitled  ;  denied  irreparable  injurj^,  insol- 
vency and  damage,  and  asked  judgment  for  costs. 

Plaintiffs  replied,  but  as  no  replication  was  necessary  it  is 
unnecessary  to  notice  it. 

The  case  was  tried  before  the  court  below  on  an  agreed 
statement  of  facts,  and  judgment  of  nonsuit  rendered 
against  the  plaintiffs,  an  appeal  taken  from  the  judgment 
roll,  no  bill  of  exceptions,  or  statement  on  appeal,  appear- 
ing in  the  record. 

There  appears,  in  the  transcript,  an  agreed  statement  of 
facts,  on  which  the  case  seems  to  have  been  tried.  This 
agreed  statement  of  facts  not  being  included  in  a  statement 
on  appeal,  and  settled  or  agreed  to  in  accordance  with  sec- 
tion 323  of  the  Civil  Code,  nor  saved  nor  included  in  a  bill 
of  exceptions,  nor  designated  or  referred  to  as  having  been 
used  on  the  trial  by  a  certificate  of  the  judge,  it  forms  no 
part  of  the  record  which  we  can  consider  on  appeal. 

Then  the  only  questions  presented  are,  did  the  court 
below  err  in  rendering  judgment  of  nonsuit  on  the  plead- 
ings and  facts  found  by  the  court  ?  The  court  found  that 
defendant  was  the  owner  of  the  mining  ground,  over  and 
through  which  plaintiffs  attempted,  without  consent  of  de- 


1871.]  NOTEWABE  v.  STERNS.  315 

fendant,  to  construct  their  ditch ;  that  the  construction  of 
said  ditch  would  greatly  injure  and  damage  defendant,  and, 
to  a  great  extent,  deprive  him  of  the  use  of  his  mining 
ground,  and  the  waters  of  Alder  gulch  running  over  and 
through  the  same;  that  defendant  and  his  grantors  had 
located  and  possessed  said  property  since  the  year  1863, 
and  had  prior  and  superior  rights  to  the  same  and  the 
enjoyment  thereof;  that  the  plaintiffs  had  not  paid,  or 
offered  to  pay,  the  said  defendant  for  any  damage  he  had 
or  would  sustain  by  reason  of  the  construction  of  the  said 
ditch  over  his  mining  ground ;  and  that  defendant  was  not 
guilty  of  the  wrongs  and  trespasses  alleged  against  him  in 
plaintiffs'  complaint. 

It  is  contended  by  plaintiffs  below  that,  under  the  act  of 
congress  entitled  "An  act  granting  the  right  of  way  to  ditch 
and  canal  owners  over  the  public  lands,  and  for  other  pur- 
poses," approved  July  26,  1866  (14  U.  S.  Stat.  at  Large,  253, 
§  9),  the  plaintiffs  had  the  legal  right  to  go  on  the  defend- 
ant' s  mining  ground,  and  construct  their  ditch  over,  through 
and  across  the  same,  without  the  consent  of  the  defendant ; 
and  that,  because  the  defendant  prevented  them  from  so 
doing,  and  filled  up  that  portion  of  the  ditch  on  his  ground, 
plaintiffs  are  entitled  to  a  judgment  for  damages  and  a  per- 
petual injunction.  So  far  as  our  information  goes,  section 
0  of  the  act  of  congress  mentioned  has  never  received 
any  judicial  construction  ;  and  the  record  in  this  case  does 
not  call  upon  us  to  construe  it  so  fully  as  to  present  those 
original  and  interesting  questions  which  must  eventually 
arise  under  this  law.  "We  do  not  think  it  was  the  intention 
<>f  congress,  when  it  said  that  the  right  of  way  for  the  con- 
struction of  ditches  and  canals,  over  the  public  domain,  for 
carrying  water  for  mining  and  other  purposes,  is  acknowl- 
edged and  confirmed  to  those  who.  by  the  local  laws  and 
customs,  have  vested  rights  therein,  to  enact  that  one  per- 
son may  go  at  his  pleasure  on  the  mining  ground  of  another, 
without  the  hitter's  consent,  and  construct  through  or  over 
the  same  a  ditch  or  canal,  which  would  greatly  damage  or 
almost  destroy  the  vested  rights  of  the  owner,  without 


316  TAYLOR  «.  STEWART.  [Jan.  T. 

showing  a  necessity  therefor,  and  paying  or  securing  the 
damage  to  result  therefrom. 

The  findings  of  the  court  show  this  to  be  about  the  state 
of  circumstances  under  which  the  plaintiffs  ask  the  court 
to  perpetually  enjoin  the  defendant  from  interfering,  in  any 
way,  to  prevent  the  construction  of  their  ditch  through  his 
property  ;  and  there  was  no  error  in  the  judgment  of  the 
court  below. 

We  think  it  was  the  intention  of  congress  to  give  the 
right  of  way  over  the  public  domain  to  those  owning  water- 
rights,  for  the  construction  of  ditches  and  canals,  to  make 
the  same  available  for  useful  and  beneficial  purposes  ;  but 
what  degree  of  necessity  must  exist  to  give  the  right  to 
construct  a  ditch  or  canal  over  or  through  land  or  mining 
ground  possessed  by  another,  in  which  valuable  vested 
rights  have  accrued  under  the  same  law,  to  the  partial  or 
total  destruction  of  those  rights,  when  and  how  the  darn- 
ages  resulting  from  the  construction  of  such  ditch  or  canal 
must  be  paid  or  secured;  and,  in  case  of  the  owner's  re- 
fusing and  preventing  the  digging  of  the  ditch  on  ground 
lawfully  possessed  by  him,  the  proper  mode  of  procedure,, 
to  enforce  the  rights  given  by  said  law  of  congress,  are 
questions  not  presented  in  this  case. 

Judgment  affirmed. 


TAYLOR  et  al.,  appellants,  v.  STEWART  et  al.,  respondents. 

PRACTICE — finding  of  fact  —  admissions.  A  note  "  not  submitted  for  the  reason 
that  defendants  conceded  these  facts,''  which  was  written  by  the  judge  at 
the  trial  in  refusing  to  submit  an  issue  to  the  jury,  is  not  the  finding  of  a 
fact  stated  in  the  issue,  nor  a  record  of  its  admission. 

.PBACTICTC  —  manner  of  admitting  facts.  The  admission  of  a  fact  during  the  tria] 
must  be  made  by  the  party,  or  his  attorney,  in  a  distinct  and  formal  man* 
ner  in  open  court  and  imports  verity. 


1871.]  TAYLOR  v.  STEWART.  317 

PRACTICE — refusal  to  submit  issues.  It  is  error  for  the  court  to  refuse  to  submit 
an  issue  to  the  jury  ou  the  ground  that  it  is  an  admitted  fact,  if  there  ha* 
not  been  a  solemn  admission  of  the  faot. 

PBA  CTICB  —  exception  to  reasons.  Parties  cannot  except  to  the  reasons  given  by 
the  court  for  its  rulings. 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County 

THIS  action  was  tried  in  October,  1869,  before  SYMES,  J. 

The  jury  found  the  following  special  findings  :  That  Tay- 
lor and  others,  at  the  time  of  the  commencement  of  the  suit, 
did  not  have  the  exclusive  right,  by  prior  appropriation,  to 
the  water  flowing  from  the  springs  in  dispute  ;  that  Taylor 
and  others  appropriated  and  run  in  their  pipes  about  nine 
inches  of  water  ;  that  the  citizens  of  Helena  had  no  other 
means  of  procuring  water  except  these  springs  at  the  time 
the  pipes  were  put  to  the  springs  ;  that  Stewart  and  others 
were  using  the  water  flowing  into  Last  Chance  gulch,  for 
ruining  purposes  on  other  claims  in  said  gulch,  before  they 
commenced  mining  on  the  ground  the  springs  were  on,  and 
before  Taylor  and  others  put  their  pipes  to  the  springs  and 
appropriated  the  same ;  that  the  miners  of  Last  Chance 
gulch  and  Stewart  and  others,  up  to  December  2,  1867, 
never  used  for  mining  purposes  any  water  of  these  springs, 
except  such  portion  as  exceeded  the  amount  used  by  the 
citizens  of  Helena  ;  and  that  Taylor  and  others,  up  to  De- 
cember 2,  1867,  did  not  divert  from  the  miners  of  Last 
Chance  gulch,  or  Stewart  and  others,  more  of  said  water 
than  the  citizens  of  Helena  used.  The  action  was  com- 
menced on  December  2.  1867. 

The  other  facts  appear  in  the  opinion. 

WOOLFOLK  &  To  OLE,  for  appellants. 

It  is  admitted  that  appellants  supplied  Helena  with  water 
from  certain  springs  ;  that  respondents  were  working  in  the 
vicinity  of  the  springs,  and  would  sink  the  springs  if  they 
•  •ontinued  to  work  ;  that  appellants  took  up  this  water  be- 
fore respondents  located  their  mining  ground  ;  and  that 
appellants  claimed  only  a  portion  of  those  springs. 


318  TAYLOR  ».  STEWART.  [Jan.  T.; 

Appellants  were  entitled  to  protection  in  the  enjoyment 
of  a  portion  of  the  springs  as  much  as  if  they  owned  the 
whole.  McKinney  v.  Smith,  21  Cal.  374. 

Did  the  court  enter  the  proper  decree  upon  these  findings 
and  admissions  ?  Civ.  Prac.  Act,  §  174  ;  Lucas  v.  City  of 
San  Francisco,  28  Cal.  591 ;  Allen  v.  Hill,  16  id.  117. 

There  is  nothing  in  the  findings  that  will  justify  respond- 
ents in  sinking  the  springs  in  dispute.  They  were  not  the 
oldest  appropriators  of  the  springs.  It  does  not  appear 
that  respondents  owned  the  "other  claims,"  referred  to  in 
the  findings,  or  had  any  title  to  the  water  used  upon  them, 
at  the  time  any  of  the  respondents  mined  the  "  other  claims." 
Special  findings,  if  relied  upon  as  the  basis  of  a  judgment, 
must  be  sufficient  to  show  a  legal  conclusion  of  liability, 
without  reference  to  extrinsic  facts.  Woodson  v.  McCune, 
17  Cal.  298 ;  Garfield  v.  K.  F.  &  T.  M.  W.  Co.,  id.  512. 

Admitting  that  respondents  had  appropriated  water  to 
use  on  mining  claims  below  the  springs,  before  appellants 
had  laid  their  pipes,  respondents  had  no  right  to  come  up  to 
the  source  of  the  springs,  after  the  appellants  had  laid  their 
pipes,  and  then  locate  other  claims  and  sink  the  springs 
in  working  them.  Nevada  W.  Co.  v.  Powell,  34  Cal.  109. 
This  action  did  not  involve  the  rights  of  respondents  to  use 
the  water  on  the  "  other  claims."  The  findings  of  the  jury 
show  that  none  of  the  respondents  or  miners  ever  appro- 
priated that  portion  of  the  springs  that  flowed  in  the  pipes 
of  appellants.  Respondents  failed  to  show  any  title  to  the 
springs  or  right  to  sink  them. 

The  findings  and  admissions  entitled  appellants  to  an 
injunction  and  a  decree  of  title  to  nine  inches  of  the  water. 
Prior  appropriation  of  water  is  entitled  to  protection.  I/erft- 
roni  v.  Miller,  34  Cal.  234  :  Hill  v.  Smith,  27  id.  476. 

CHUMASEEO  &  CHADWICK  and  SHOBER  &  LOWRY,  for  re- 
spondents. 

Appellants  can  claim  no  rights  on  account  of  the  rights 
of  the  citizens  of  Helena  to  the  use  of  the  springs.  The 
record  does  not  show  the  evidence  in  that  court  below, 


1871.]  TAYLOB  t>.  STEWART.  319 

this  court  cannot  disturb  the  judgment  without  the  evidence 
and  admitted  facts.  Appellants  were  not  entitled  to  an  in- 
junction under  the  facts  found  by  the  jury.  Angell  on 
Water-courses,  121-124.  The  findings  do  not  show  that 
appellants  were  entitled  to  any  affirmative  relief  against 
respondents.  Respondents  asked  for  no  affirmative  relief. 
All  presumptions  are  in  favor  of  the  correctness  of  the 
judgment  of  the  court  below,  and  the  judgment  should  be 
affirmed.  Owen  v.  Morton,  24  Gal.  375  ;  Emmal  v.  Webb, 
36  id.  197. 

KNOWLES,  J.  This  is  an  action  for  an  injunction  to  re- 
strain the  respondents  from  so  working  certain  mining 
grounds  as  to  sink  certain  springs,  the  waters  of  which 
appellants  had  appropriated. 

The  court  below,  on  the  findings  of  the  jury,  refused  to 
grant  the  prayer  of  appellants,  and  gave  judgment  to  the 
respondents  for  costs.  From  this  judgment  appellants 
appeal  to  this  court.  There  are  no  assignments  of  error 
in  the  transcript.  The  only  exception  that  appears  in  the 
record  is  one  to  the  ruling  of  the  court  in  refusing  to  sus- 
tain appellants'  motion  for  a  decree.  This,  then,  is  the  only 
point  this  court  can  consider. 

Appellants  claim  that  the  findings  of  the  jury,  together 
with  the  admissions  of  respondents,  entitled  them  to  a  de- 
cree. The  findings  of  the  jury  alone  were  not  sufficient  u> 
entitle  them  to  this.  In  any  light  in  which  this  case  can  be 
considered,  to  entitle  appellants  to  recover,  it  was  necessary 
for  them  to  establish  the  fact  that  they  appropriated  tl it- 
waters  of  these  springs  before  respondents  located  the 
mining  ground,  the  working  of  which  was  sinking  them. 
The  jury  did  not  find  any  such  fact;  no  issue  involving 
such  a  fact  was  submitted  to  them.  The  appellants,  how- 
ever, claim  that  respondents  admitted  this  fact.  They 
requested  the  court  below  to  submit  to  the  jury  this  issue  : 

''Did  the  plaintiff's  and  their  grantors  appropriate  so 
much  of  the  waters  of  the  springs  in  controversy,  as  was 
necessary  to  furnish  and  supply  the  citizens  and  inhabitants 


320  TAYLOR  a.  STEWART.  [Jan.  T., 

of  Helena  with  water  for  drinking,  culinary  and  other  pur- 
poses, before  defendants  took  up  and  located  their  mining 
ground? " 

To  this  the  court  appended  the  following  note:  "Not 
submitted,  for  the  reason  that  defendants  conceded  these 
facts." 

The  question  presents  itself:  How  did  defendants  con- 
cede this  fact  ?  It  is  not  admitted  in  the  pleadings,  for  the 
defendants  join  issue  upon  it  in  their  answer.  Can  this  note 
be  considered  the  record  of  the  admission  of  this  fact  by 
the  attorneys  for  respondents,  in  open  court,  or  by  the 
respondents  themselves,  to  save  time  or  the  expense  of 
proving  it  ? 

There  is  no  difference,  I  conceive,  in  the  manner  in  which 
this  admission  should  be  made,  whether  by  the  parties 
themselves  or  their  attorneys.  Greenleaf,  in  his  work  on 
Evidence,  vol.  1,  §  186,  says  of  admissions  of  attorneys  in 
open  court  for  this  purpose:  "But  to  this  end  they  must 
be  distinct  and  formal,  or  such  as  are  termed  solemn  admis- 
sions, made  for  the  express  purpose  of  alleviating  the  strin- 
gency of  some  rule  of  practice.,  or  the  dispensing  with  the 
formal  proof  of  some  fact  at  the  trial." 

Can  this  note  of  the  judge,  assigning  reasons  for  not 
submitting  an  issue  to  a  jury,  be  considered  the  record  or 
evidence  of  such  a  formal,  distinct  and  solemn  admission 
as  is  here  contemplated  ?  It  was  not  made  for  that  purpose. 
Neither  one  of  the  parties,  as  far  as  the  record  shows,  had 
any  thing  to  do  with  this  record,  if  it  can  be  called  one. 
The  appellants,  who  were  the  most  interested  in  having 
such  an  admission  made,  asked  to  have  an  issue  presented 
to  the  jury  to  determine  these  facts  ;  and  they  ask  the  court 
to  instruct  the  jury  that  this  issue  is  the  only  one  they 
have  to  deal  with,  so  far  as  the  controversy,  as  to  the  right 
to  mine  the  ground  upon  which  the  springs  are  situated,  is 
concerned.  Surely  the  appellants  could  not  have  under- 
stood that  any  formal  and  solemn  admission  of  this  fact 
nad  been  made  by  respondents,  as  to  dispense  with  their 
proving  it.  If  this  is  such  a  solemn  or  formal  admission 


1871.]  TAYLOR  v.  STEWART.  321 

of  this  fact,  then  it  imports  verity,  and  this  court  must  con- 
sider that  it  was  made  in  open  court  in  a  direct  and  formal 
manner.  If  this  was  not  the  truth,  the  only  way  it  could 
b.<>  attacked  would  be  directly  to  correct  the  record  ;  yet, 
undoubtedly,  in  this  case,  had  appellants  objected  to  the 
ruling1  of  the  court  in  not  submitting  this  issue  to  the  jury, 
and  had  presented  this  court  with  a  full  and  complete  tran- 
script of  all  the  proceedings  therein,  and  it  did  not  appear 
that  any  formal  or  solemn  admission  had  been  made  of  this 
fact,  this  court  would  certainly  have  found  that  there  was 
error  sufficient  to  reverse  the  judgment  of  tne  court  below, 
unless,  after  further  consideration,  it  was  found  that  re- 
spondents ought  to  have  judgment  notwithstanding  this 
fact. 

It  cannot,  then,  be  said  that  this  is  such  a  record  of  that 
admission  as  imports  verity  ;  for  we  have  seen  that,  had  the 
ruling  been  excepted  to,  without  some  support  it  would  fall, 
while,  if  it  imported  verity,  it  would  rest  upon  itself  and 
need  no  support. 

The  only  question  presented  the  court  was,  whether  or 
not  to  submit  this  issue.  To  the  ruling  upon  this  point 
the  parties  might  except.  It  would  be  an  anomaly  in  prac- 
tice to  require  parties  to  examine  the  reasons  a  court  might 
assign  for  a  ruling  and  except  to  these.  They  might  be 
wrong  and  the  ruling  right.  For  these  reasons  this  court 
must  hold  that  this  note  of  the  judge  was  no  record  of  any 
such  admission.  There  was  a  similar  note  to  some  other 
issues  the  appellants  asked  to  be  submitted.  These,  however, 
stand  upon  the  same  footing  as  the  one  considered. 

if  it  is  claimed  that  this  is  not  the  record  of  such  formal 
or  solemn  admissions  as  those  treated  of  above,  it  may  be 
answered  that  no  other  class  of  admissions  require  such  a 
record  to  be  made  of  them.  The  general  admissions  of 
parties  are  only  evidence  in  the  cause,  which  might  go  to 
the  jury  to  be  taken  into  consideration  by  them  in  making 
up  their  findings.  Neither  can  this  be  considered  as  a  find- 
ing by  the  court.  The  court  does  not  pretend  to  find  the 
*act.  The  note  of  the  judge  was  not  appended  for  any  such 
VOL.  i.  41. 


322  MING  0.  TRUETT.  [Jan.  T., 

purpose.  To  give  this  note  any  other  or  more  extended 
meaning  than  the  court  intended,  would  not  be  good  prac 
tice.  The  court  intended  it  only  as  a  reason  for  his  ruling, 
and  not  as  the  record  of  an  admission  or  as  a  finding. 

Appellants  should  have  asked  the  court  to  have  found 
this  fact,  or  to  present  the  issue  to  the  jury  for  them  to  find 
it.  When  refused  they  should  have  excepted,  unless  they 
could  present  to  this  court  some  proper  record  of  the  ad- 
mission of  the  fact. 

The  judgment  of  the  court  below  is  affirmed. 

Judgment  affirmed. 


MING,  respondent,  v.  TRUETT,  appellant. 

PBOBATK  JUDGE — powers  under  town-site  act.  The  law  which  confers  upon  • 
probate  judge  the  power  to  enter  public  lands  for  town  sites  and  award 
town  lots  to  the  citizens,  does  not  grant  him  any  judicial  powers,  but  pre- 
scribes his  duties,  which  are  ministerial. 

PHOBATE  JUDGE  —  compensation  as  attorney  in  his  court.  A  probate  judge  can 
practice  as  an  attorney  in  his  court,  and  is  entitled  to  receive  compensation 
for  making  applications  for  the  entry  of  town  lots  and  taking  the  affidavits 
to  them  at  the  request  of  his  employer. 

CRIMINAL  LAW  —  extortion.  A  person  who  demands  and  receives  illegal  fees  aa 
an  officer,  or  under  the  color  of  his  office,  is  guilty  of  extortion. 

PRACTICE — judgment — presumption  in  favor  of.  This  court  will  presume,  if 
the  contrary  does  not  appear  upon  the  record,  that  the  court  below  found 
facts  sufficient  to  support  the  judgment. 

PRACTICE  — judgment  —  conflicting  evidence.  This  court  will  not  reverse  a  judg- 
ment, if  the  testimony  is  conflicting,  although  the  weight  of  evidence  ap- 
pears to  be  against  the  finding  of  the  court  below. 

ILLEGAL.  FEES  —  recovery  of.  A  civil  suit  to  recover  illegal  fees,  which  had  been 
demanded  and  received  under  color  of  office,  can  be  brought  againat  an 
officer  who  has  not  been  convicted  in  a  criminal  action. 


Appeal  from  the  Third  District,  Lewis  and  Qlarlce  County. 

MING  commenced  this  action  against  Trnett,  probate  judge 
of  Lewis  and  Clarke  county,  to  recover  $396,  being  treble 
.he  amount  of  fees  that  were  alleged  to  have  been  illegally 
charged  and  received  by  said  Trnett,  as  such  judge,  in  Octo- 


1871.]  MING  a.  TRUETT.  323 

l>er,  1869.  The  case  was  tried  by  SYMES,  J.,  who  rendered 
a  judgment  for  Ming.  This  action  was  brought  under  the 
following  statute,  approved  January  14,  1869:  "If  any 
judge  *  *  *  or  other  officer  *  *  *  of  this  Terri- 
tory, ministerial  or  judicial,  shall  receive  or  take  any  fee  or 
reward,  to  do  or  execute  his  duty  as  such  officer,  except 
such  as  is  or  shall  be  allowed  by  law  ;  or  if  any  such  officer 
shall  ask,  demand  or  receive  (either  before  or  after  service 
performed)  any  other  or  greater  fees  than  are  allowed  by 
law,  every  such  officer  so  offending  shall  be  deemed  guilty 
of  extortion,  and  on  conviction  shall  be  fined  in  any  sum  not 
less  than  $200  nor  more  than  $1.000,  and  on  conviction  be 
removed  from  office,  and  shall,  at  the  suit  of  the  party  ag- 
grieved, be  liable  for  treble  the  amount  of  the  fees  so  ille- 
gally charged  and  received." 

The  other  facts  appear  in  the  opinion. 

CHUMASERO  &  CHADWICK  and  Of.  MAY,  for  appellant. 

The  territorial  statute,  relating  to  extortion,  exists  in 
nearly  every  State,  and  has  been  often  construed.  All  the 
authorities  hold  that  the  money  received  by  the  officer 
must  have  been  paid  him  by  the  party  aggrieved  to  do  his 
duty  as  such  officer.  If  the  money  demanded  was  for  ser- 
vices rendered  outside  of  his  official  duties,  the  case  is  not 
\vithin  the  statute  and  respondent  cannot  sustain  his  action. 
^hattuck  v.  Woods,  1  Pick.  173  ;  Durilap  v.  Curtis,  10  Mass. 
•211 ;  Commonwealth  v.  Shed,  I  id.  228.  If  the  officer 
thought  he  had  a  right  to  the  extra  compensation,  the  action 
will  not  lie.  Runnels  v.  Fletcher,  15  Mass.  525. 

The  testimony  of  appellant  and  Addoms  shows  that  re- 
spondent requested  them  to  make  out  the  applications  for 
the  town  lots,  and  that  they  explained  to  him  that  the 
money  charged  was  in  payment  of  such  services,  which  the 
law  did  not  require  appellant  to  perform. 

The  action  is  criminal  in  its  nature  and  must  be  supported 
by  the  same  evidence  that  would  support  an  indictment.  In 
this  case  the  weight  of  the  evidence  is  in  favor  of  appellant. 
It  was  not  proven  that  the  money  received  by  appellant  was 


824  MING  v.  TBUETT. 

received  for  the  performance  of  official  business.  Hatch  v. 
Mann,  15  Wend.  48  ;  Commonwealth  v.  Pease,  16  Mass.  93. 

The  judgment  could  not  be  rendered  on  the  complaint, 
as  it  does  not  set  forth  sufficient  facts  to  entitle  respondent 
to  recover.  Williams  v.  HingJiam,  4  Pick.  344.  It  is  not 
claimed  that  appellant  received  the  fees  by  virtue  of  a  fee 
bill  as  probate  judge. 

Under  the  statute,  under  which  this  action  is  brought,  a 
conviction  under  a  criminal  prosecution,  by  indictment, 
must  precede  the  removal  from  office  and  the  recovery  of 
the  penalty  of  treble  damages.  Respondent  cannot  recover 
unless  he  avers  and  proves  such  a  conviction  of  appellant 
of  extortion.  The  treble  damages  is  a  pecuniary  penalty 
attached  to  a  statutory  punishment. 

The  judgment  was  against  the  evidence,  and  should  be 
reversed.  Bedford  v.  State,  5  Humph.  552  ;  1  Gr.  &  W. 
New  T.  361,  367  ;  3  id.  1228-9  ;  Hill,  on  New  T.  47,  50. 

W.  E.  CULLEN  and  S.  WORD,  for  respondent. 

The  statement  does  not  specify  wherein  the  evidence  is 
insufficient  to  justify  the  verdict,  as  required  by  the  statute. 
Prac.  Act,  §  195  ;  Caldwell  v.  Greeley,  5  Nev.  260 ;  Proles 
v.  Pacific  G.  S.  M.  Co.,  35  Cal.  37 ;  Beans  v.  Emanily,  36 
id.  121 ;  Butter fieU  v.  0.  P.  R.  R.  Co.,  37  id.  381,  and  cases 
cited. 

The  judgment  cannot  be  reversed  because  the  statement 
shows  that  there  was  some  evidence  to  sustain  it,  although 
the  testimony  may  be  conflicting.  Hill,  on  New  T.  17,  21, 
50  ;  McNeil  v.  Shirley,  33  Cal.  202  ;  Hardenburgh  v.  Bacon, 
33  id.  356,  and  cases  cited. 

The  legal  presumption  is  in  favor  of  the  judgment  of  the 
court  below.  Error  must  be  affirmatively  shown.  Bellows 
v.  Sackett,  15  Barb.  96 ;  Grant  v.  Moore,  22  N.  Y.  323  ; 
Oakley  v.  Van  Horn,  21  Wend.  305  ;  Phelps  v.  McDonald, 
26  N.  Y.  82. 

The  imposition  of  new  duties,  or  duties  for  the  perform- 
ance of  which  no  fees  have  been  given  by  the  legislature, 
does  not  entitle  the  officer  to  any  fee  therefor.  A  charge 


1871.]  MING  v.  TKUETT.  326 

for  such  service  is  extortion.     Fees  are  never  allowed  by 
implication,  nor  can  an  officer  charge  reasonable  compensa 
tion  for  the  performance  of  such  service.     People  v.  Super 
msors  of  W.  Y.,  1  Hill.  367  ;  De  Boro  v.  Trustees  of  Cinn., 
7  Ohio  St.  237 ;  Andrews  v.  United  States,  2  Story,  202 ; 
United  States  v.  Brown,  9  How.  487. 
The  complaint  is  sufficient  under  the  statute. 

KNOWLES,  J.  The  complaint  in  this  action  shows  that 
the  respondent  paid  appellant  $4  per  lot  for  thirty-three 
town  lots,  which  he  had  made  application  to  enter  in  the 
town  plat  of  Helena,  the  same  being  appellant's  fees,  which 
the  law  allows  for  hearing  proofs  and  executing  deeds  there- 
for, in  accordance  with  the  town  site  act  of  this  Territory. 
That  afterward  appellant  demanded  of  him  $4  more  per  lot 
on  said  number  of  lots,  as  such  fees,  which  respondent  paid 
under  protest. 

Appellant's  answer  puts  in  issue  these  allegations  in  part, 
and  avers  that  the  first  $4  per  lot  which  he  received  of  re- 
spondent were  charges  for  making  out  thirty-three  applica- 
tions for  the  entry  of  said  lots  and  taking  the  affidavits 
thereto,  and  that  the  same  was  done  at  the  special  instance 
and  request  of  respondent. 

If  the  appellant  had  established  the  truth  of  these  aver- 
ments in  his  answer,  we  would  hold  that  he  was  not  liable 
in  this  action.  The  law  conferring  upon  the  probate  judge 
the  power  to  enter  public  lands  upon  which  any  town  is 
located,  and  awarding  to  its  citizens  town  lots  under  the 
provisions  of  law,  does  not  purport  to  confer  upon  him  any 
judicial  powers.  The  power  is  conferred  upon  him,  and 
not  upon  his  court.  He  is  simply  designated  as  the  trus- 
tee for  the  benefit  of  the  citizens  of  the  town.  His  duties 
in  allowing  entries  of  lots  are  prescribed  by  law,  and  he 
acts  in  a  ministerial  capacity.  If  he  acted  as  a  court,  par- 
ties contesting  the  right  to  make  entries  would  be  entitled 
to  a  jury  to  decide  upon  the  facts  presented  in  the  issue. 
The  law,  then,  prohibiting  probate  judges  from  practicing 


326  MING  v.  TRUETT.  [Jan.  T., 

law  in  their  own  courts  does  not  apply,  as  lie  does  not  sit 
in  determining  these  questions  as  a  court. 

Admitting,  however,  that  the  probate  judge,  in  allowing 
entries  for  town  lots,  does  act  in  a  judicial  capacity,  if 
appellant  received  this  $4  per  lot  as  attorney  fees,  for 
making  out  applications  for  entries,  then  this  action  does 
not  lie. 

This  action  is  brought  to  recover  fees  and  a  penalty  of 
appellant,  which  fees,  it  is  claimed,  were  illegally  demanded 
and  received  as  fees  allowed  him,  as  probate  judge,  by  law, 
for  hearing  proofs  and  executing  deeds  as  prescribed  by  the 
aforesaid  town  site  act.  If  they  were  demanded  as  attorney 
fees,  and  received  as  such,  they  could  not  be  demanded  and 
received  as  fees  for  the  above-named  purposes.  This  action 
will  lie  only  in  case  of  extortion.  To  constitute  extortion 
at  common  law,  and  under  the  statute  under  which  this 
action  was  brought,  it  must  appear  that  the  person  accused 
demanded  and  received  the  illegal  fees  as  an  officer,  or 
under  the  color  of  his  office.  The  statute  under  which  this 
action  was  brought  is  a  penal  statute,  and  must  be  con- 
strued strict]}'.  No  considerations  of  public  policy  would 
;il low  tliis  court  to  construe  it  so  as  to  embrace  an  offense 
not  clearly  within  its  terms.  If  appellant  received  these 
fees  as  attorney  fees,  and  it  was  unlawful  for  him  to  receive 
an  attorney  fee  in  the  case,  still  this  would  not  amount  to 
extortion,  and  this  action  would  not  lie,  for  he  would  not 
demand  and  receive  such  fees  under  the  color  of  office.  An 
action  for  money  had  and  received  might  apply. 

Finally,  we  do  not  think  the  fees  set  forth  can  be  called 
exclusively  attorney' s  fees.  An  attorney  might  receive  such 
fees,  and  also  any  one  who  was  not  an  attorney.  It  would 
not  require  any  person  to  have  a  license  to  practice  law,  to 
be  authorized  to  make  such  applications.  Any  one  making 
out  such  applications  could  not,  for  this  reason,  be  said  to 
be  practicing  law,  and  required  to  procure  a  revenue  license 
as  such  ;  and,  as  we  have  before  seen,  the  tribunal  in  which 
the  applications  are  filed  is  not  a  court.  The  making  out 
applications  for  the  entry  of  town  lots,  and  taking  the  affi- 


1871.J  MING  v.  TEUETT.  327 

davits  thereto,  as  prescribed  by  law,  were  not  duties  which 
appellant  could  be  called  upon  to  do  as  the  duties  of  his 
office. 

The  court  below,  upon  the  trial,  gave  judgment  for  re- 
spondent. This  court  must  presume  that  the  court,  as  the 
contrary  does  not  appear  upon  the  record,  found  facts  suffi- 
cient to  warrant  the  judgment.  In  other  words,  this  court 
must  presume,  as  the  contrary  does  not  appear,  that  the 
court  below  found  that  appellant  did  receive  these  fees  as 
probate  judge,  and  as  fees  allowed  him  by  law  for  perform- 
ing the  duties  of  his  trust.  This  being  found,  $4  per  lot 
<  >f  these  fees  were  undoubtedly  illegal,  and  the  demanding 
and  receiving  of  them,  under  our  statute,  was  extortion. 

The  testimony  presented  in  the  record  is  conflicting  upon 
this  point ;  and,  although  it  may  appear  to  us  that  the 
weight  of  evidence  was  against  the  conclusion  arrived  at, 
the  well-settled  principles  of  law  will  not  allow  us,  in  such 
cases,  to  interfere. 

The  court  below  observes  the  witnesses,  their  character, 
their  manner  and  the  probabilities  of  their  evidence,  and  is 
intrusted  with  the  delicate  and  often  difficult  task  of  giving 
such  weight  to  the  testimony  of  each  one  as  seems  to  him 
just  and  proper  ;  and  it  must  be  considered  by  us  that,  in 
so  regarding  the  evidence  in  the  court  below,  in  this  case  it 
was  found  that  the  weight  of  evidence  was  in  favor  of 
respondent. 

We  do  not  think  the  point  well  taken,  that  appellant 
should  have  been  convicted  in  a  criminal  action  before  this 
one  would  lie.  This  action  should  not  depend  upon  the 
criminal  action.  There  is  no  reason  in  requiring  a  party  to 
allege  and  prove  that  any  one  complained  of  had  been  con- 
victed of  the  crime  of  extortion  before  he  would  be  entitled 
to  recover  in  a  civil  action,  as  this  fact  would  have  no  bear- 
ing on  the  gist  of  the  issue,  namely  :  as  to  whether,  under 
the  color  of  office,  illegal  fees  had  been  demanded  and 
received.  Surely  the  record  in  the  criminal  case  could  not 
be  introduced  to  prove  this.  If  so  it  would  be  conclusive, 
and  no  jury  would  be  needed  to  determine  the  issue.  The 


MING  v.  TRUETT.  [Jan.  T., 

determination  of  the  criminal  action,  in  fact,  would  deter- 
mine both.     Such  cannot  be  the  proper  construction  of  the 
statute.    A  reasonable  construction  of  a  statute  must  be 
made  if  possible. 
The  judgment  of  the  court  below  is 

Affirmed. 

The  appellant  applied  for  a  rehearing  in  this  case  at  the 
August  term,  1871. 

WADE,  C.  J.  This  case  was  tried  at  the  January  term  of 
this  court,  1871,  and  it  is  now  before  the  court  upon  a  motion 
for  a  rehearing  on  behalf  of  the  appellant.  If  we  could  look 
at  the  evidence  in  this  case  as  disclosed  by  the  record,  we 
should  have  no  hesitation  in  reversing  the  judgment  of  the 
court  below,  for  the  reason  that  the  evidence  clearly  and  de- 
cidedly preponderates  in  favor  of  the  defendant.  But  there 
being  some  evidence  to  support  the  judgment,  the  action  of 
this  court  is  restrained  and  controlled  by  a  long  course  of  de- 
cisions which  declare  that  the  judgment  of  the  lower  court 
will  be  affirmed  if  there  is  evidence  to  sustain  it.  This  rule 
has  been  too  long  settled  to  be  now  disturbed,  and  although 
it  may  work  injustice  in  particular  cases,  yet  the  experience 
of  a  long  period  of  time  has  vindicated  its  wisdom  and  pro- 
priety. 

This  is  a  civil  action,  and  the  rule  that  the  evidence  must 
exclude  every  reasonable  doubt  does  not  apply. 

To  set  aside  a  verdict  or  judgment  in  a  case  where  there 
was  evidence  on  both  sides,  there  must  be  such  a  preponder- 
ance of  evidence  as  to  satisfy  the  court  that  there  was  either 
an  absolute  mistake  on  the  part  of  the  jury  or  that  they 
acted  under  the  influence  of  prejudice,  passion  or  corrup- 
tion. Cohen  v.  Dupont,  I  Sandf.  260  ;  McOetrick  v.  Wason, 
4  Ohio  St.  566. 

If  there  was  a  conflict  of  evidence  on  a  question  of  fact, 
rightly  submitted  to  the  jury,  the  court  will  not,  in  general, 
grant  a  new  trial  on  the  ground  that  the  verdict  is  against 


1871.]  KINNA  v.  HORN.  829 

evidence,  even  though  they  deem  the  conclusion  reached  by 
the  jury  erroneous.  Winlhell  v.  Latham,  6  Cow.  682 ; 
Fleming  v.  Holenbeck,  7  Barb.  271 ;  Adsit  v.  Wilson,  7 
How.  Pr.  64 ;  Mackey  v.  N.  T.  C.  R.  R.  Co.,  27  Barb.  628 ; 
Stoddard  v.  Long  I.  R.  JR.  Co.,  5  Sandf.  180 ;  Arbenthy  v. 
Wayne  Co.  Bank,  5  Ohio  St.  266. 

The  findings  of  a  court  when  substituted  for  a  jury  are 
entitled  to  the  same  consideration  as  the  verdict  of  the  lat- 
ter. Merrick  v.  Bowrey,  4  Ohio  St.  60. 

These  rules  apply  with  much  stronger  force  in  an  appel- 
late court  where  the  evidence,  as  spread  upon  the  record,  is 
necessarily  imperfect,  and  where  the  means  of  weighing  the 
feeling,  the  interest,  the  passion,  or  the  prejudice  of  the 
witness,  is  beyond  our  reach. 

Rehearing  denied. 


KINNA,  appellant,  v.  HORN  et  al.,  respondents. 


PBACTICE— judgment  reversed  for  irrelevant  tnst ructions.  A  judgment  will  be 
reversed  if  the  instructions  of  the  court  below  upon  irrelevant  and  imma- 
terial issuea  are  erroneous,  and  calculated  to  mislead  the  jury. 


Appeal  from  the  Third  District.,  Lewis  and  Clarke  County. 

KINNA  brought  this  action  against  Horn  and  Marvin,  as 
partners,  to  recover  for  goods  sold  and  delivered,  moneys 
advanced  and  services  rendered  to  the  firm.  Marvin  did  not 
appear,  and  Horn  filed  a  separate  answer,  and  denied  that  he 
and  Marvin  were  partners,  and  that  he  was  liable  personally 
on  account  of  the  matters  alleged  in  Kinna's  complaint. 

The  case  was  tried  in  July,  1870,  and  the  jury  rendered  a 
verdict  for  Horn.  Kinna  moved  for  a  new  trial  on  the  ground 
that  the  instructions  given  by  the  court  were  erroneous 

VOL.  I.  — 42. 


330  KINNA  v.  HOBN.  [Jan.  T., 

The  court.  SYMES,  J.,  overruled  the  motion  and  Kinna  ap- 
pealed. 

The  instructions,  to  the  giving  of  which  Kinna  excepted, 
were  as  follows : 

"  1.  If  the  jury  believe,  from  the  evidence,  that  the  goods 
bought  in  St.  Louis  for  the  firm  of  Horn  &  Marvin  were  in 
reality  bought  for  Frederick  Horn,  one  of  the  defendants, 
under  a  contract  or  agreement  with  said  Horn,  then  plain- 
tiffs cannot  recover  in  this  action  for  said  goods. 

"2.  If  the  jury  believe,  from  the  evidence,  that  the  goods 
charged  as  sold  to  the  firm  of  Horn  &  Marvin  were  in  real- 
ity sold  to  Horn  or  Marvin  individually,  and  not  upon  any 
firm  account,  then  the  plaintiff  cannot  recover  for  such  goods 
in  this  action. 

"3.  Even  if  the  defendants  were  partners  during  the  time 
such  goods  were  furnished  to  them  as  such  partners,  yet 
if  the  jury  find  from  the  evidence  that  either  of  the  defend- 
ants, Horn  or  Marvin,  have  paid  for  said  goods,  or  rendered 
services  to  the  amount  thereof,  which  has  not  been  paid, 
then  the  plaintiff  cannot  recover  therefor,  and  in  no  event 
can  recover  more  than  the  balance  due  upon  said  goods. 

"4.  If  the  jury  believe,  from  the  evidence,  that  plaintifi 
has  never  delivered  the  goods  to  defendants,  which  he  claims 
to  have  purchased  for  them,  then,  unless  he  has  offered  to 
deliver  said  goods  to  defendants  before  the  institution  of 
this  action,  they  will  find  for  defendants  as  regards  the  con- 
tract for  the  St.  Louis  goods. 

"5.  The  offer  to  deliver  the  goods,  to  be  effectual  in  this 
action,  should  be  clearly  proved. 

"6.  The  defendant  had  a  right  to  inspect  the  goods 
claimed  to  have  been  purchased  for  his  benefit,  and  to 
know  that  they  were  such  as  had  been  ordered,  before  being 
compelled  to  receive  the  same,  or  to  pay  therefor,  before  the 
commencement  of  this  action. 

"10.  If  the  jury  find  for  plaintiff,  they  will  only  find  in 
such  amount  as  is  still  due,  after  deducting  any  payments 
made  by  defendants. 

"11.  It  was  the  duty  of  plaintiff  to  set  apart  all  the  goods 


1871. ]  KINNA  v.  HORN.  331 

purchased  for  defendant  and  not  suffer  them  to  be  mingled 
with  his  own,  and  if  the  jury  find  from  the  evidence  that 
plaintiff  has  never  separated  said  goods  from  his  own  since 
their  arrival  in  Helena,  then  he  cannot  recover  for  said 
goods. 

12.  If  the  jury  believe,  from  the  evidence,  that  plaintiff 
has  released  the  defendant  Marvin  from  all  liability  on  the 
joint  indebtedness  sued  on,  then  the  defendant  Horn  is 
also  released  therefrom." 

W.  F.  SANDERS,  for  appellant. 

The  denials  of  Horn  are  insufficient,  so  far  as  they  relate 
to  his  individual  liability  for  the  partnership  account  sued 
on.  WMtwell  v.  Thomas,  9  Cal.  499. 

The  jury  found,  for  aught  we  know,  that  appellant  com- 
plied with  his  contract  fully  ;  but  the  court  instructed  them 
that  this  was  not  enough.  After  the  arrival  of  the  goods  in 
Helena,  the  court  says  in  effect,  to  the  jury,  it  was  a  condi- 
tion precedent  to  a  recovery  that  appellant  should  permit 
an  inspection  ;  separate  goods  from  his  own  ;  offer  to  deliver 
<j;oods,  or  deliver  them.  No  one  of  these  conditions  was  a 
part  of  appellant' s  contract,  nor  did  any  witness  so  state  or 
claim.  Instructions  4,  5,  6,  11. 

There  was  no  plea  of  payment,  nor  of  release  of  Marvin, 
but  the  court  instructed  the  jury  as  to  payments.  Instruc- 
tions 3,  10,  12. 

The  fifth  instruction  was  clearly  wrong.  The  court  mis- 
led the  jury  by  treating  the  part  of  the  case  for  money 
advanced  as  for  goods  sold  and  delivered,  and  talked  to  the 
jury  about  plaintiff's  recovery  for  the  St.  Louis  goods. 
Instruction  11. 

E.  W.  &  J.  K.  TOOLE,  for  respondent. 

If  a  special  agent  violates  his  instructions,  and  confusee 
•I  is  goods  and  those  of  his  principal,  he  forfeits  his  commis- 
sion, and  is  liable  for  damages  for  such  disobedience  or  con- 
fusion. Every  doubtful  circumstance  would  be  construed 
unfavorably  to  the  agent.  Story  on  Agency.  39f>  An  agent 


532  KINNA  t>.  HORN.  [Jan.  T., 

who  voluntarily  makes  advances  for  his  principal  cannot 
be  re-imbursed.     Story  on  Agency,  398. 

If  a  person  having  charge  of  another's  property  con- 
founds it  with  his  own,  so  that  it  cannot  be  distinguished, 
he  must  suffer  the  inconveniences  thereof  and  pay  the  dam 
ages  therefor.  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  108. 

An  agent  renders  himself  personally  liable  when  he  makes 
a  contract  without  any  authority.  Meech  v.  Smith,  7  "Wend. 
315. 

An  agent  having  his  principal' s  money  to  purchase  a  bill 
of  exchange  should  so  buy  the  same,  and  not  use  his  own 
credit.  Hays  v.  Stone,  7  Hill,  128 ;  Stone  v.  Hays,  3  Denio, 
575. 

Appellant  errs  in  assuming  that  the  money  was  laid  out 
for  Horn.  Pars,  on  Merc.  Law,  161  ;  Stone  v.  Hays,  3 
Denio,  575. 

The  jury  are  not  supposed  to  have  found  on  issues  not 
raised  by  the  pleadings.  Gifford  v.  Carvill,  29  Cal.  589  ; 
Bernal  v.  Oleim,  33  id.  669. 

WARREN,  C.  J.  The  only  issue  raised  by  the  separate 
answer  of  Horn,  in  this  cause,  was  upon  the  allegation  of 
partnership  liabilities  of  the  defendants.  The  other  denials 
are  of  individual  indebtedness  or  liability  of  himself,  which 
is  not  alleged  in  the  complaint,  and  are  wholly  irrelevant 
and  immaterial.  The  instructions  given  by  the  court  upon 
other  matters  not  embraced  in  the  issue  were  calculated  to 
mislead  the  jury,  and  were  erroneous. 

For  this  reason  the  judgment  is  reversed  and  the  cause 

remanded. 

Exceptions  sustained 


1871.]  Bonn  a.  DUNPHY.  833 


BOHM,  respondent,  v.  DUNPHY  et  al.,  appellants 


AND  TEN  ANT  —  d'istraint  for  rent  superseded.  The  com  men-law 
right  of  distraint  for  rent  is  not  applicable  to  the  condition  of  this  Terri- 
tory, and  has  been  superseded  by  the  statutory  remedies  which  have  been 
given  to  the  landlord. 

PBACTICE  —  review  of  issues  of  law  in  defective  answer.  This  court  will  review 
on  appeal  an  issue  of  law  raised  by  a  demurrer  to  the  answer,  which  has 
been  waived  by  the  filing  of  a  replication,  if  the  answer  is  defective  in  mat- 
ters of  substance  which  cannot  be  cured  by  the  verdict. 

DAMAGES  —  measure  of  ,  for  distraining  rent  illegally.  In  an  action  to  recover 
damages  for  the  wrongful  taking  and  conversion  of  money  by  another 
under  a  distress  warrant  for  rent  due  from  a  third  person,  the  party  is  en- 
titled to  recover  the  amount  that  was  so  taken  and  converted,  with  legal 
interest  for  its  detention,  and  exemplary  damages. 

DAMAGES  —  awarding  of  exemplary  —  recklessness.  Exemplary  damages  are  only 
given  when  a  willful  act  is  complained  of,  or  there  is  either  a  wanton  reck- 
lessness or  a  deliberate  intention  to  injure. 

EVIDENCE  —  exemplary  damages  —  mitigation  —  legal  advice.  In  a  suit  to 
recover  exemplary  damages,  a  party  can  prove,  as  a  mitigating  fact,  that  he 
had  acted  in  good  faith  under  the  advice  of  an  atto/ney. 

PARTNERSHIP  —  surviving  partner  can  recover  exemplary  damages  —  evidence, 
A  surviving  partner  can  recover  exemplary  damages  for  the  wrongful  con- 
version of  partnership  property;  but  personal  matters  that  affect  only  the 
deceased  cannot  be  given  in  evidence,  although  they  might  have  been  prop- 
erly admitted  in  aggravation  of  the  damages  during  his  life-time. 

Appeal  from  tJie  TJiird  District,  Lewis  and  Clarke  County. 

ON  February  27,  1868,  Bohm  and  Aub  brought  this  suit 
against  Dunphy,  Bentley,  Armitage,  Morse  and  John  Doe 
to  recover  $25,000,  damages.  The  complaint  alleged  that 
the  defendants  entered  into  the  banking-house  of  plaintiffs 
in  Helena  on  February  26,  1868,  and  by  force  and  violence, 
willfully  and  wrongfully  took  and  carried  away  $2,000,  the 
property  of  plaintiffs,  and  that  they  detained  $1,935  of  said 
sum. 

Dunphy,  Bentley  and  Armitage  filed  their  answer  on 
March  7,  1868,  and  alleged  that  they  took  $1,935  on  certain 
premises  owned  by  Dunphy  and  Bentley,  on  a  portion  of 
which  plaintiffs  had  their  banking-house  ;  that  T.  P.  Ames 
had  used  and  occupied  the  same  as  a  tenant  of  Dunphy  and 
Bentley  ever  since  November  14.  1866,  and  owed  therefor  on 


334  BOHM  o.  DUNPHY.  [Jan.  T., 

ebruary  26,  1868,  $1,965  ;  that  Dunphy  and  Bentley,  with 
Armitage  as  their  bailiff,  entered  on  said  premises  and  took 
said  amount  "justly  as  for  and  in  the  name  of  a  distress 
for  the  said  rent  so  due ; "  that  Dunphy  and  Bentley  during 
said  time  were  landlords  of  Ames  of  the  premises  ;  and 
that  said  amount  remained  due. 

Morse  answered  on  March  6,  1868,  and  denied  every  alle- 
gation of  the  complaint. 

The  plaintiffs  then  filed  their  demurrer  to  the  answer  of 
Dunphy,  Bentley  and  Armitage  for  the  following  reasons : 
"No.  1.  The  allegation  that  rent  was  due  defendants  from 
Thomas  P.  Ames  does  not  justify  defendants  in  robbing  the 
bank  of  plaintiffs.  No.  2.  There  is  no  allegation  in  said 
complaint  that  plaintiffs  are  tenants  of  Dunphy  and  Bent- 
ley,  or  owe  them  rent.  No.  3.  Because  Dunphy  and  Bent- 
ley  have  no  right  to  take  or  distrain  the  money  or  other 
property  of  the  plaintiffs  for  any  rent  that  may  be  due  them 
from  any  other  persons.  No.  4.  Because  under  the  laws  of 
Montana  Territory  there  is  no  provision  for  a  distress  for 
rent,  and  the  common-law  doctrine  of  distress  is  in  conflict 
with  the  statutes  of  this  Territory." 

The  demurrer  was  overruled  in  October,  1868,  by  the 
court  MTJNSON",  J.,  and  plaintiffs  excepted. 

On  October  29,  1868,  the  death  of  Aub  was  suggested,  and 
the  action  was  ordered  to  be  continued  in  the  name  of  the 
survivor  Bolim. 

The  plaintiffs  filed  their  replication  to  the  answer  of  Dun- 
phy, Bentley  and  Armitage  on  October  31,  1868,  and  denied 
the  allegations  thereof,  and  alleged  that  Bohm  and  Aub  on 
October  25,  1867.  rented  their  banking-house  from  Ames  ; 
that  they  had  paid  Ames  file  rent  as  soon  as  it  was  due ; 
that  Dunphy  and  Bentley  were  never  the  landlords  of 
Bolim  and  Aub.  and  that  there  was  no  privity  between 
them ;  that  the  lease  from  Dunphy  and  Bentley  to  Ames 
expired,  and  Dunphy  and  Bentley  obtained  a  judgment  for 
the  recovery  of  said  premises  on  November  7,  1867.  under 
ths  forcible  entry  and  detainer  law  of  Montana :  that  an 
appeal  was  taken  from  said  judgment,  which  was  pending 


1871.]  BOHM  V.  DUNPHY.  336 

at  the  time  the  money  was  taken  from  plaintiffs ;  that 
defendants  did  not  impound  said  property  so  taken,  as 
required  by  the  common  law  of  distraint ;  that  defendants 
converted  the  same  to  their  own  use,  and  plaintiffs  could 
not  replevy  it ;  and  that  defendants  did  not  comply  with 
said  law  of  distraint. 

The  distress  warrant  was  directed  to  Armitage,  and,  after 
reciting  that  Ames  owed  Dunphy  and  Bentley  $1,937.50  for 
the  rent  of  the  premises,  concluded  as  follows : 

"Now,  therefore,  you  are  commanded  to  enter  upon  the 
said  premises  above  described,  and  make  distress  according 
to  law  upon  any  personal  property,  money  or  effects  which 
you  may  find  upon  the  premises  aforesaid,  and,  if  the 
money  is  not  paid,  that  you  make  sale  according  to  law. 

"  In  witness  whereof  we  have  subscribed  this  warrant  this 
22d  day  of  February,  A.  D.  1868. 

"E.  M.  DUNPHY, 
"D.  A.  LENTLEY." 

The  following  return  was  indorsed  on  this  warrant : 

"HELENA,  February  26,  1868. 

"  In  pursuance  of  the  within  direction  I  entered  upon  the 
premises  within  named,  and  distrained  upon  nineteen  nun 
dred  and  thirty-five  dollars  ($1,935.00),  and  delivered  the 
same  to  Dunphy  &  Bentley. 

"J.  ARMITAGE." 

The  action  was  tried  in  July,  1870,  before  SYMES,  J.,  and 
the  jury  returned  a  verdict  for  plaintiffs. 

The  eighth  instruction  given  by  the  court  was  as  follows : 
"The  fact  that  the  defendants  acted  under  advice  of  coun- 
sel can  have  no  force  in  the  case.  If  you  believe,  from  the 
evidence,  that  it  was  the  intention  and  purpose  of  defend- 
ants to  take  said  money  and  appropriate  it  to  the  payment 
of  their  debt  from  Ames  to  Dunphy  and  Bentley,  and  not 
to  hold  it  and  give  the  plaintiffs  an  opportunity  to  replevy 
the  same,  the  law  implies  that  such  act  was  willful,  and  you 
may  find  such  exemplary  damages  as  you  consider  just." 

The  other  facts  appear  in  the  opinion. 


336  BOHM  v.  DUNPHY.  [Jan.  T., 

CHUMASERO  &  CHADWTOK,  for  appellants. 

By  the  common  law  all  movable  goods  and  chattels  which 

might  be  found  upon  the  premises,  whether  the  goods  of  the 
tenant,  under-tenant  or  other  person,  might  be  taken  as  a 
distress  for  rent.  All  the  evidence  introduced  on  the  ques- 
tions relating  to  respondent  renting  the  premises  from  Ames, 
and  that  of  privity  between  appellants  and  respondent,  was 
immaterial,  and  tended  to  mislead  the  jury  from  the  true 
issues.  Taylor  on.  L.  &  T.,  §  583 ;  Holt  v.  Johnson, 
14  Johns.  425 ;  Spencer  v.  McQ-owen,  13  Wend.  256  ;  1 
Smith's  Lead.  Cas.  534,  535. 

The  case  of  Dunphy  and  Bentley  v.  Ames  had  been 
appealed  to  the  district  court.  Under  onr  statute  there 
must  be  a  trial  de  novo  ;  the  whole  case  is  left  to  stand  on 
the  pleadings  only.  The  answer  of  Ames  shows  a  continu- 
ing tenancy.  The  court  erred  in  allowing  the  proceedings 
in  this  case  to  be  introduced  in  evidence. 

The  English  courts  hold  that  money,  if  it  can  be  identified, 
is  the  subject  of  distress.  The  property  in  controversy  is 
national  currency,  and  each  bill  was  numbered  and  lettered 
and  could  be  identified. 

Our  statutes  provide  expressly  that  the  common  law  of 
England,  so  far  as  it  is  applicable  and  of  a  general  nature, 
shall  be  the  law,  etc.  Acts  1865,  356. 

The  acts  of  the  States,  adopting  the  common  law,  fix  the 
date  of  its  existence,  and  generally  adopt  it  as  it  existed 
when  the  acts  were  passed.  Our  courts  have  decided  that 
the  statutes  of  England,  in  amendment  of  the  common  law, 
are  a  part  of  it.  1  Kent's  Com.  522-524 ;  Patterson  v. 
Winn,  5  Pet.  241. 

The  act  11  George  II,  ch.  19,  changes  what  had  been  pre- 
viously held  to  be  the  law,  and  declares:  "That  when  the 
distress  is  for  rent,  an  irregularity  or  unlawful  act  subse- 
quently done  by  a  party  shall  not  render  him  a  trespasser 
ab  initio ;  but  the  party  aggrieved  by  such  unlawful  act 
may  recover  for  the  damages  sustained  by  such  act." 
SacJcrider  v.  McDonald,  10  Johns.  264. 


1871.]  BOHM  v.  DUNPHY.  337 

The  impounding  of  property  taken  as  a  distress,  was  for 
the  purpose  of  keeping  it  safely.  It  was  to  be  kept  as  a 
pledge ;  but  a  change  was  made  by  statute  51  Henry  III, 
authorizing  a  sale  in  fifteen  days.  3  Kent's  Com.  474.  If 
the  property  was  not  replevied  in  five  days,  the  landlord 
had  a  right  to  sell.  Stat.  Wm.  &  M.,  ch.  5  ;  8  Anne,  ch.  14. 

Respondents,  on  February  27th,  commenced  their  action 
of  trespass.  On  the  29th  they  commenced  their  action 
of  replevin,  and  subsequently  dismissed  it.  Respondents 
elected  to  bring  trespass,  and  waived  their  right  to  re- 
plevin. 

The  court  erred  in  its  instructions  on  the  question  of 
exemplary  damages.  A  mere  willful  and  wrongful  taking 
of  property  does  not  authorize  a  verdict  for  exemplary 
damages.  Either  malice,  violence,  oppression  or  wanton 
recklessness  must  mingle  in  the  controversy.  Kennedy  v. 
N.  M.  R.  R.  Co.,  36  Mo.  351 ;  Honeseifer  v.  Shdble,  31^  id. 
243 ;  Freideriheit  v.  Edmondson^  36  id.  226.  When  a 
party  acts  under  the  advice  of  counsel,  it  does  away  with 
the  presumption  of  malice,  and  vindictive  damages  are  riot 
proper.  Sedgw.  on  Dam.  460  (marg.);  Thompson  v.  Mussey^ 
3  Greenl.  305  ;  Stone  v.  Swift,  4  Pick.  393  ;  Blunt  v.  Little, 
3  Mason,  102 ;  Commonwealth  v.  Bradford,  9  Mete.  268. 

The  only  damages  recoverable  in  this  case  would  be  the 
money  taken  with  interest.  Sedgw.  on  Dam.  550-553  (476 
marg. ).  No  special  damages  were  claimed  or  proved. 

The  money  taken  was  the  property  of  Bohm  &  Aub.  On 
the  death  of  Aub  the  partnership  was  dissolved.  The  dam- 
ages sworn  to  was  the  loss  of  the  use  of  the  money  of  the 
partnership  to  the  partnership,  which  was  not  in  existence. 
The  administrator  should  have  been  made  a  party. 

The  rule  "aclio  personalis  moritur  cum  persona"  is 
applicable.  Broom's  Leg.  Max.  613  ;  1  Bouv.  Law  Die.  64. 
In  an  action  by  personal  representatives  of  a  decedent,  in 
respect  of  an  injury  to  the  personal  estate  of  the  decedent, 
the  damages  must  be  measured  by  the  injury,  and  exem- 
plary damages  cannot  be  recovered.  Sedgw.  on  Dam.  467 
(marg). 

VOL.  I.— 43. 


338  BOHM  v.  DUNPHY.  [Jan.  T., 

E.  W.  &  J.  K.  To  OLE,  for  respondent. 

There  is  but  one  form  of  action  for  the  enforcement  of  a 
right  or  redress  of  a  wrong.  Prac.  Act,  §  1.  Distraint  was 
the  only  remedy  of  the  landlord  at  common  law.  He  conld 
not  recover  in  debt  or  ejectment  during  tenancy,  nor  dis- 
train for  an  uncertain  demand.  1  Coke  on  Lit,  95,  a  ;  Tay- 
lor on  L.  &  T.  564. 

The  statute  gives  new  rights  and  remedies :  forcible  or 
unlawful  detainer,  assumpsit,  contract  and  attachment. 
Taylor  on  L.  &  T.  525 ;  Renwick  v.  Morris,  7  Hill, 
575  ;  Stafford  v.  Ingersoll,  3  Hill,  38.  The  appellants'  de- 
mand was  for  so  many  dollars,  and  they  took  twenty -five 
per  cent  more  than  was  due. 

The  authorities  cited  by  appellant,  as  to  proceedings 
under  distress  for  rent,  are  under  statute,  and  not  common 
law.  Smith  v.  Stewart,  6  Johns.  48.  The  relation  of  land- 
lord and  tenant  must  exist  at  the  time  of  the  distress.  No 
tice  to  quit,  suit  for  possession,  appearance  and  judgment 
treats  tenants  as  trespassers.  2  Coke  on  Lit.  144  :  Taylor  on 
L.  &  T.  §§  488,  564,  565.  At  the  time  of  the  distress  the  ten- 
ant must  be  rightfully  in  possession  and  the  landlord  have 
a  right  to  distrain.  Respondent  was  a  sub-tenant,  had  paid 
his  rent  and  was  not  liable  for  rent.  If  liable  to  have  prop- 
erty taken  upon  a  distress,  it  should  have  been  impounded. 
Bain  v.  Clark,  10  Johns.  424  ;  1  Smith's  Lead.  Cas.  219-221  ; 
1  Coke  on  Lit.  152,  230  ;  2  Pars,  on  Cont.  481. 

Appellants  did  not  impound  the  money,  but  converted  it 
to  their  own  use  and  destroyed  its  identity. 

We  have  adopted  the  common  law  of  England  applicable 
to  this  country.  The  right  of  distress  for  rent  is  inconsistent 
with  the  genius  of  our  government  and  the  rights  and  reme- 
dies afforded  by  law. 

The  sub-tenant  never  attorned  to  the  landlord  for  rent  and 
was  not  in  arrears  for  rent.  There  is  a  difference  between 
the  right  of  a  landlord  to  distrain  for  rent  the  property  of 
persons  not  liable  therefor  found  on  the  premises,  and  a 
conversion  of  that  property  by  which  claimant  was  deprived 
of  his  writ  of  replevin. 


1871.]  BOHM  v.  DUNPHY.  339 

The  right  of  action  survives  in  this  case.  The  action  i^ 
not  for  damage  to  character,  feelings  or  person,  but  a  tor- 
tious  trespass  upon  the  property  of  respondents,  who  were 
partners.  Barb,  on  Parties,  158, 167 ;  Sedgw.  on  Dam.  372, 
453,  548. 

WARREN,  C.  J.  This  action  is  brought  to  recover  dam- 
ages for  the  wrongful  taking  and  conversion  by  defendants 
of  $1,935  in  treasury  notes  of  the  United  States  and  national 
bank  notes,  the  property  of  the  partnership  firm  of  Bohm 
&  Aub. 

The  joint  answer  of  Dunphy,  Bentley  and  Armitage,  by 
pregnant  negatives,  admits  the  taking  of  the  money,  and  as 
new  matter  justifies  it  as  having  been  done  under  a  distress 
warrant  for  rent  due  defendants,  Dunphy  and  Bentley,  un- 
der a  lease  from  them  to  one  Ames,  of  certain  premises, 
upon  which  the  money  in  question  was  found,  and  from 
which  it  was  taken.  A  demurrer  was  interposed  to  this  an- 
swer- which  was  overruled,  and  afterward  a  replication  was 
filed  by  plaintiff  Bohm.  Aub,  the  other  partner,  having 
died  after  the  commencement  of  the  suit,  and  the  cause  pro- 
ceeding by  leave  of  the  court  in  the  name  of  the  survivor. 
The  cause  was  tried  by  jury,  who  found  a  general  verdict 
for  plaintiff  for  $3,397.25,  upon  which  judgment  was  ren- 
dered against  defendants  Dunphy,  Bentley  and  Armitage. 
Defendant  Morse,  who  answered  separately,  not  being  in- 
cluded in  the  judgment.  A  motion  for  a  new  trial  was  made 
and  overruled,  from  which  order,  and  from  the  judgment, 
defendants  appeal. 

With  the  view  we  take  of  this  case  it  will  be  necessary  to 
notice  but  few  of  the  errors  assigned.  Upon  the  authorities 
cited  in  the  exhaustive  brief  of  appellants  and  that  of  the 
respondent,  we  are  of  opinion  that  the  common-law  right 
of  distress  for  rent  conflicts  with  the  spirit  of  the  legislation 
of  this  Territory,  and  is  inapplicable  to  our  condition.  The 
statutory  remedies  given  to  the  landlord  by  attachment,  and 
for  detainer  of  leased  premises,  supersede  the  right  of  dis- 
traint for  rent,  which  had  its  origin  in  the  feudal  relations, 


340  BOHM  v.  DUNPHY.  [Jan.  T., 

and  was  the  only  means  at  common  law  to  enforce  payment 
of  rent  due.  In  all  of  the  States  in  which  the  right  is  rec- 
ognized in  this  country  the  legislatures  have  regulated  the 
manner  of  its  exercise  and  provided  means  for  its  execu- 
tion, and  the  harshness  and  rigor  incident  to  its  origin  have 
been  mitigated.  We  have  precedents  in  several  States  where, 
as  here,  the  common  law,  so  far  as  applicable,  has  been 
expressly  adopted,  for  holding  that  the  right  of  distraint  for 
rent,  even  as  modified  by  the  acts  of  parliament  cited  by 
appellant  in  aid  of  it,  is  inconsistent  with  our  institutions, 
and  that  it  is  peculiarly  inapplicable  here.  Appellant 
claims  that,  inasmuch  as  the  plaintiff  did  not  abide  his  de- 
murrer to  the  answer,  but  filed  a  replication,  his  demurrer 
was  thereby  waived,  and  the  issue  of  law  thereby  raised 
cannot  be  reviewed  on  this  appeal.  This  would  be  true  if 
the  answer  was  defective  only  in  form  or  in  such  matter 
as  could  be  cured  by  a  verdict,  but  it  is  our  duty,  in  review- 
ing the  errors  assigned  on  an  appeal,  to  review  the  entire 
record  in  respect  to  the  matter  assigned  as  error.  The  an- 
swer here  purports  to  make  a  full  defense  by  way  of  con- 
fession and  avoidance,  no  replication  was  necessary,  and  the 
matter  in  avoidance  being  insufficient  in  substance  for  that 
purpose,  to  that  extent  an  immaterial  issue  was  formed 
which  was  wholly  incapable  of  being  tried,  and  no  ruling 
of  the  court,  or  verdict  of  a  jury,  could  give  it  validity. 
Had  the  verdict  been  for  defendants,  the  plaintiff  was  enti- 
tled to  a  judgment  non  obstante  veredicto.  All  that  remained 
under  the  pleadings  was  the  question  of  damages,  which 
might  properly  have  been  assessed  by  jury.  We  are  of 
opinion  that,  upon  assessment  of  the  damages,  the  facts 
alleged  in  the  answer  might,  perhaps,  have  been  given  in 
evidence  as  a  partial  defense  in  mitigation  of  damages,  even 
if  not  pleaded  at  all,  but  certainly  were  proper  for  the  con- 
sideration of  the  jury  when  pleaded  for  that  purpose,  al- 
though not  good  as  a  full  defense  to  the  action. 

In  reference,  then,  to  the  measure  of  damages,  the  only 
thing  before  the  jury.     The  complaint  does  not  allege  spe- 


1871.]  BOHM  v.  DUNPHY.  341 

cial  damages  and  none  were  provable  under  it  as  such. 
The  plaintiff  could  only  recover  such  damages  as  directly 
and  necessarily  resulted  from  the  act  complained  of,  which 
would  be  the  amount  wrongfully  taken,  with  legal  interest 
for  its  detention,  and  such  exemplary  damages  as  the  jury 
might  give  under  proper  instructions  of  the  court,  and 
within  reason,  under  all  the  circumstances  proven. 

In  this  view  all  the  instructions  relative  to  the  right  and 
manner  of  distress  are  immaterial,  except  in  so  far  as  they 
might  have  misled  the  jury,  which  appellant  does  not 
claim. 

The  real  error  assigned,  which  is  all  we  are  to  review, 
consists  in  the  instructions  upon  the  subject  of  exemplary 
damages.  These  are  only  given  where  the  act  complained 
of  is  willful,  or  there  is  either  wanton  recklessness  or  a  de- 
liberate intention  to  injure,  and  the  court  below  erred  in 
instructing  the  jury  upon  this  subject  that  the  fact  that 
defendants  acted  under  the  advice  of  counsel  could  have  no 
force.  It  is  well  settled  that  such  fact,  if  in  good  faith,  is 
proper  for  the  consideration  of  the  jury  in  connection  with 
the  question  of  exemplary  damages,  which  have  for  their 
foundation  the  animus  and  circumstances  attending  the  act. 
It  appears  from  the  evidence  that  the  defendants  in  this 
case  acted  under  the  advice  of  an  attorney  whose  recognized 
experience  and  abilities  gave  weight  to  his  opinion  upon  a 
controverted  question  of  law,  which  might  well  have  com- 
manded the  confidence  of  defendants,  and  this  fact  should 
have  gone  to  the  jury  for  their  consideration. 

Regarding  this  action  as  prosecuted  by  Bohm  as  sur- 
viving partner  to  recover  damages  for  the  conversion  of 
partnership  property,  we  hold  that  it  survived  the  death  of 
Aub  to  the  extent  of  such  recovery,  and  that  exemplary 
damages,  being  punitory  in  their  nature,  might  also  be  recov- 
ered at  the  suit  of  the  survivor,  although  matters  personal 
in  their  nature  to  the  deceased,  which  in  his  life-time  might 
have  been  given  in  evidence  in  aggravation  of  damages, 
were  improperly  admitted. 


342  BLACK  v.  APPOLONIO.  [Jan.  T.. 

For  the  errors  in  relation  to  the  assessment  of  the  dam- 
ages contained  in  the  instructions  the  cause  is  reversed  and 
remanded  for  a  new  trial  in  accordance  with  the  principles 
of  this  opinion. 

Exceptions  sustained. 


BLACK,  respondent,  v.  APPOLONIO  et  al.,  appellants. 

PRACTICE  —  continuance  —  diligence  —  affidavit  and  facts  considered.  The  re- 
fusal of  the  court  below  to  grant  a  continuance  will  not  be  reviewed  if  there 
has  not  been  a  gross  abuse  of  discretion.  In  determining  what  diligence 
has  been  used  to  obtain  evidence,  the  court  must  consider  not  only  the  affi- 
davit fora  continuance,  but  facts  within  its  judicial  knowledge  of  the  con- 
dition of  the  country  and  means  of  communication. 

CASE  AFFIRMED  —  mechanic1  s  lien.  The  case  of  Mason  v.  Germain,  ante,  p.  263. 
deciding  that  the  lieu  of  a  mechanic  is  not  destroyed,  if  the  court  finds 
that  the  party  has  claimed,  without  fraud,  more  than  he  was  entitled  to, 
affirmed. 

STATUTORY  CONSTRUCTION  —  law  relating  to  mechanics' liens  —  remedial.  The 
act  "  securing  liens  to  mechanics  and  others  "  should  be  strictly  followed, 
but  it  is  a  remedial  statute  and  should  be  liberally  construed. 

STATUTORY  CONSTRUCTION  —  "just  and  true  account."  Under  the  act  "  secur- 
ing liens  to  mechanics  and  others,"  the  words,  "a  just  and  true  account,1' 
do  not  mean  the  exact  account  for  which  judgment  may  be  entered,  but 
an  honest  statement  of  the  account  by  the  party  claiming  the  lieu. 

STATUTORY  CONSTRUCTION  —  mechanics'  liens  —  implied  contract.  Under  the 
act  "  securing  liens  to  mechanics  and  others"  a  mechanic  is  entitled  to  his 
lien  for  the  payment  of  his  services,  which  have  been  performed  under  an 
implied  contract. 

HOFFMAN  v.  WALTON  DOUBTED.  Hoffman  v.  Walton,  36  Mo.  613,  gives  too  strict 
a  construction  to  the  statute  securing  liens  to  mechanics. 

Appeal  from  the  Third  District.  Lewis  and  Clarke  County. 

BLACK  brought  this  action  in  May,  1870,  to  recover 
$719.50  and  interest,  and  have  the  same  decreed  a  lien  on  the 
"  Walla  Walla  Hotel."  The  lien  set  forth  in  the  complaint 
was  as  follows:  "Know  all  men  by  these  presents  that, 
under  an  agreement  with  Joseph  Appolonio,  the  owner  of 
the  premises  (description  omitted  by  reporter),  the  under- 
has  performed  labor  and  furnished  materials  in  and 


1871.]  BLACK  ».  APPOLONIO.  343 

about  (description) :  That  said  materials  were  furnished  and 
labor  performed  (time  omitted  by  reporter) :  That  the 
amount  due  thereof,  and  for  which  the  undersigned  claims 
a  lien,  is  the  sum  of  seven  hundred  and  nineteen  -^  dol- 
lars, over  and  above  all  payments  and  set-offs. 

"I,  the  undersigned,  Joseph  Black,  do  hereby  make 
known  my  intention  to  hold  a  lien  upon  the  above  described 
premises  *  *  *  for  the  said  sum  of  $719-^  and  interest 
thereon  *  *  *  ." 

In  the  affidavit,  Black  swears  that  the  foregoing  notice 
uis  true  in  all  respects,  and  contains  a  just  and  true  ac- 
count of  the  demand  due  him,  after  deducting  all  proper 
credits  and  offsets." 

Appolonio  failed  to  appear  and  answer.  The  other  de- 
fendants, Higgins,  Hagadorn  and  Woolman,  who  had  a 
mortgage  on  the  premises  from  Appolonio,  answered  and 
denied  all  the  material  allegations  of  the  complaint,  and 
claimed  that  their  mortgage  was  a  prior  lien  to  the  pre- 
tended lien  of  Black. 

In  July,  1870,  the  cause  was  continued,  on  the  applica- 
tion of  Higgins,  Hagadorn  and  Woolman,  to  procure  the 
depositions  of  Appolonio  and  one  Rafferty.  In  October, 
1870,  another  application  was  made  by  the  same  defendants 
for  a  continuance  to  enable  them  to  obtain  the  same  deposi- 
tions. The  affidavit  alleged  that  Rafferty  and  Appolonio 
were  near  Cedar  creek,  in  Montana,  about  two  hundred 
miles  from  Helena,  and  that  the  defendants  had  written  let- 
ters and  made  inquiries  to  ascertain  their  whereabouts  before 
the  term  commenced. 

This  motion  for  a  continuance  was  overruled,  and  defend- 
ants excepted.  The  cause  was  then  tried  by  the  court, 
SYMES,  J.,  who  entered  a  judgment  for  Black  for  $719.50. 
and  a  decree  for  the  sale  of  the  premises  to  secure  the  pay- 
ment of  $600  of  said  judgment. 

The  motion  for  a  new  trial  was  overruled  by  the  court, 
SYMES,  J.,  and  defendants,  Higgins,  Hagadorn  and  Wool- 
man, appealed. 


344  BLACK  «.  APPOLONIO.  [Jan.  T., 

J.  J.  WILLIAMS  and  CHUMASERO  &  CHAD  WICK,  for  appel 
lants. 

The  affidavits  for  a  continuance  showed  a  proper  cause 
therefor.  Civ.  Prac.  Act,  §  158. 

The  respondent  did  not  comply  with  the  law  securing 
liens  to  mechanics.  He  did  not  tile  with  the  county  recorder 
a  just  and  true  account  of  his  demand,  after  allowing  all 
credits.  Acts  1865,  333,  §  6.  This  law  is  in  derogation  of 
the  common  law  and  must  be  strictly  complied  with  by 
those  who  seek  its  benefits.  It  must  be  strictly  construed 
Houck  on  Liens,  §  70  ;  Brady  v.  Anderson,  24  111.  112. 

Respondent  tiled  his  notice  of  lien  and  account  in  gross. 
The  bill  of  items,  that  was  furnished  to  appellants  after  this 
suit  was  brought,  showed  that  respondent  included  in  his 
notice  of  lien  the  use  of  a  shop  and  tools  for  some  of  the 
workmen.  He  can  only  have  a  lien  for  "  work  and  labor 
done  and  performed  upon  or  for  materials,  machinery  and 
fixtures  for  building,"  etc.  Acts  1863,  332,  §  1.  The  ac- 
count required  to  be  filed  must  be  confined  to  those  specific 
items.  Any  thing  beyond  these  is  fraudulent  and  invalidates 
the  whole  claim  for  a  lien.  Houck  on  Liens,  §  210. 

If  the  account  filed  and  proven  is  combined  with  other 
charges,  for  which  no  lien  in  given,  so  that  it  cannot  be 
ascertained  from  the  account  filed  how  much  of  the  gross 
charge  is  a  lien,  the  whole  benefit  of  the  act  is  lost.  Edgar 
v.  Salisbury,  17  Mo.  271. 

LAWRENCE  &  HEDGES,  for  respondent. 

Appellants  showed  no  diligence  to  obtain  testimony  of 
Appolonio  and  Rafferty.  Their  affidavit  shows  that  they 
made  arrangements  with  them  to  attend  as  witnesses,  after 
the  suit  was  commenced,  and  that  Appolonio  arid  Rafferty 
have  not  been  beyond  the  reach  of  a  subpoena.  No  sub- 
poena was  issued. 

No  exception  was  taken  to  the  finding  of  the  court  below. 
Civ.  Prac.  Act,  §  180.  No  objection  was  made  to  the  intro- 
duction of  the  lien  in  evidence. 


1871.]  BLACK  v.  APPOLONIO.  345 

KNOWLES,  J.  This  is  an  action  to  enforce  a  mechanic's 
lien  against  the  Walla  Walla  Hotel,  in  the  town  of  Helena, 
for  work  and  labor  done  thereon  in  the  erection  of  the  same. 

Judgment  was  given  by  the  court  below  against  Appo- 
lonio  for  $719,  and  a  lien  was  awarded  against  the  said 
property  for  the  sum  of  $600. 

The  first  error  assigned  is  the  refusal  of  the  court  below 
to  grant  a  continuance  on  the  affidavits  filed  and  presented 
in  the  record. 

The  refusing  or  granting  a  continuance  rests  in  the  sound 
discretion  of  the  court  to  whom  the  application  is  made. 
11  Cal.  21 ;  23  id.  156. 

This  court  cannot  review  this  discretion,  unless  it  was 
grossly  abused.  The  court,  as  appears  of  record,  upon  the 
application  of  appellant,  granted  a  continuance  for  one 
term  for  the  purpose  of  allowing  appellants  to  procure  the 
testimony  of  the  very  witnesses  named  in  this  application. 
One  of  these  witnesses,  and  the  most  important  in  the  case, 
as  appears  by  the  decree,  had  been  duly  served  with  sum- 
mons in  this  case,  and  had  made  default,  and  in  law  con- 
fessed the  allegations  of  the  complaint.  A  court,  in  pass- 
ing upon  a  motion  for  continuance,  is  not  confined  to  the 
statements  in  the  affidavit,  but  can  take  into  consideration 
those  facts  which  are  within  his  judicial  knowledge  con- 
cerning the  condition  of  the  country  and  the  means  of  com- 
munication in  determining  whether  due  diligence  has  been 
used.  Taking  all  these  matters  into  consideration  we  can 
find  no  abuse  of  discretion. 

The  second  point  made  by  appellants  is,  that  the  lien 
should  be  set  aside,  for  the  reason  that  respondent  claimed 
a  lien  for  a  greater  amount  than  the  court  below  found  he 
was  entitled  to. 

Tliis  court  held,  in  the  case  of  Mason  &  Duke  v.  Ger~ 
maine,  that  a  claim  for  a  lien  for  a  greater  amount  than  a 
party  shows  himself  entitled  to  would  not  vitiate  the  lien, 
if  the  same  was  unaccompanied  by  any  fraud.  This  court 
cannot  infer  fraud  from  the  facts  presented  in  this  record. 
The  mere  fact  that  an  excess  was  claimed  as  a  lien  over 
VOL.  I. —44. 


346  BLACK  ».  APPOLONIO.  [Jan.  T.; 

what  the  court  found  the  respondent  entitled  to  is  not 
sufficient. 

The  case  of  Edgar  v.  Salisbury,  17  Mo.  271,  is  not  in 
point.  The  question  of  fraud  was  not  presented  in  that 
case.  All  that  the  court  then  decided  was,  that  where  it 
appeai-s  on  the  face  of  the  pleadings  that  a  party  has 
claimed  a  lien  for  services  for  which  the  law  gives  no  lien 
in  the  same  notice  for  a  lien  for  services  for  which  the  law 
does  give  a  lien,  and  in  the  notice  of  lien  an  amount  is 
claimed  in  solido,  and  no  items  specifying  the  amount  due 
for  each  service  on  demurrer,  the  court  will  give  judgment 
for  defendant,  for  the  reason  that  it  cannot  separate  the 
amount,  and  tell  what  is  a  valid  lien  and  what  not. 

It  appears  from  the  cases  cited  in  Houck  on  Liens,  that 
there  is  some  conflict  of  opinion  upon  this  point.  While 
we  are  fully  aware  that  the  statute,  giving  mechanics  and 
others  liens,  is  in  derogation  of  common  law,  and  provides 
an  extraordinary  remedy,  yet  it  is  a  remedial  statute,  and 
should  be  so  construed  as  to  further  the  object  intended. 
Under  our  statute  a  mechanic  can  claim  a  lien  for  services 
under  an  implied  contract.  If  the  strict  construction 
claimed  is  to  prevail,  then,  should  a  mechanic  fail  to  deter- 
mine the  exact  amount  a  court  or  jury,  under  the  testimony, 
might  find  his  services  to  be  reasonably  worth,  his  lien 
would  fail.  It  appears  to  us  that  all  our  statute  requires 
is,  that  a  person  wishing  to  avail  himself  of  the  benefits  of 
it  should  honestly  state  his  account.  The  term,  "just  and 
true  account,"  does  not  necessarily  imply  more  than  this. 
Neither  does  "a  just  or  true  account"  imply,  necessarily, 
the  exact  account  a  jury  or  court  might  find  due  under  the 
contract.  The  case  of  Hoffman  et  al.  v.  Walton  et  al., 
cited  in  Houck  on  Liens,  as  a  case  decided  in  Missouri. 
gives  too  strict  a  construction  of  a  statute  similar  to  ours. 
In  the  case  of  implied  contracts  it  would  make  it  useless, 
and  afford  no  relief  to  those  it  was  intended  to  protect.  If 
a  mechanic  should  make  a  mistake  in  addition,  and  claim 
one  dollar  more  than  he  was  entitled  to,  this  would  vitiate  his 
lien.  The  definition  of  "just  and  true  account,"  it  decides, 


1871.]  TRAVIS  v.  McCoRMicK.  347 

in  effect,  to  be  an  exact  account.  Considering  the  character 
of  this  statute,  securing  to  mechanics  and  others  liens,  and 
the  class  of  community  intended  to  be  protected  by  it,  this 
construction  of  the  statute  may  be  said  to  stick  in  the  bark. 
Houck  on  Liens  says,  "  that  in  States  where  a  lien  is  given  on 
an  implied  contract,  it  would  be  doubtful  whether  so  strict 
a  construction  would  be  given  as  in  Missouri."  We  can  see 
no  difference  in  principle  in  the  construction  of  the  statute, 
whether  the  claim  for  a  lien  was  on  an  express  or  implied 
contract.  Such  a  statute  should  be  strictly  pursued,  while 
it  should  be  liberally  construed. 

The   court  below  found  no  fraud   on   the  part   of  the 
respondent. 

Judgment  of  the  court  below  affirmed. 

Judgment  affirmed. 


TRAVIS  et  al.,  respondents,  -».  MoCoRMicK,  appellant.* 

PRACTICE — conflicting  evidence.  The  judgment  of  the  court  below  will  iio4 
be  reversed  if  the  evideuce  is  conflicting. 

MORTGAGEE — personal  property  —  issue  of  diligence.  It  is  a  mixed  questiou 
of  law  and  fact  to  determine  the  issue  respecting  the  use  of  due  diligence 
by  the  mortgagee  of  personal  property  to  obtain  possession  of  the  same. 

MORTGAGEE  —  diligence — possession  of  property.  The  mortgagee  of  personal 
property,  who  makes  no  effort  to  obtain  the  possession  thereof,  within  a 
mouth  after  the  maturity  of  his  debt,  does  not  use  the  diligence  that  is 
required  by  law. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  facts  appear  in  the  opinion  and  the  report  of  the  case 
at  the  January  term,  1870  (ante,  148).  The  action  was  tried 
by  the  court,  SYMER,  J. 

CHUMASERO  &  CHADWICK,  for  appellant. 


*  Case  affirmed.    Travis  v.  McCormick,  ante,  US.  affirmed. 


548  TRAVIS  •&.  McConMiCK.  [Jan.  T., 

W.  F.  SANDERS  and  J.  J.  WILLIAMS,  for  respondents. 

The  only  question  presented  is,  the  sufficiency  of  the  dili 
gence  used  by  respondents  to  secure  the  possession  of  the 
mortgaged  property.  The  statement  that  in  Illinois  a 
mortgagee  should  not  delay  one  or  two  days  is  an  illustra- 
tion and  not  the  assertion  of  a  principle.  Silence  might 
sometimes  be  wiser  diligence  than  many  inquiries.  Travel 
might  sometimes  not  be  diligence.  No  general  rule  can  be 
established.  The  situation  of  the  parties  and  the  facilities 
of  intercourse  must  be  considered.  Reed  v.  Eames,  19  111. 
594 ;  Cass  v.  Perkins,  23  111.  383. 

If  the  facilities  for  finding  the  property  were  poor,  and 
for  hiding  it  absolutely  good,  if  legal  proceedings  were  of 
no  probable  avail,  the  length  of  time  making  due  diligence 
would  be  modified.  The  court  below  found  that  due  dili- 
gence had  been  used.  Appellant  asks  that  this  finding  of 
fact  be  reversed.  Respondents  claim  that  there  should  be 
a  rehearing  on  the  ruling  in  this  case,  at  the  January  term, 
1870. 

SYMES,  J.  This  was  an  action  for  the  possession  of  per 
sonal  property.  The  plaintiffs  below  claimed  the  possession 
of  the  horse  in  dispute,  under  a  chattel  mortgage  executed 
to  them  by  the  vendors  of  defendant,  who  claimed  the  horse 
as  an  innocent  purchaser  after  the  debt  the  mortgage  was 
executed  to  secure  had  become  due,  and  contending  that  the 
plaintiff  did  not  take  possession  of  the  horse  or  use  due 
diligence  to  obtain  possession  after  the  debt  became  due. 

The  case  was  tried  before  the  court  below,  and  judgment 
rendered  for  plaintiffs.  Motion  for  new  trial  overruled,  and 
appeal  taken  from  judgment  and  order  refusing  new  trial. 

The  only  question  presented  in  the  case  is,  did  the 
respondent  use  such  diligence  as  the  law  requires,  or  due 
diligence  in  endeavoring  to  obtain  possession  cf  the  horse, 
when  the  condition  of  the  mortgage  became  absolute.  Sec- 
tion 3  of  our  chattel  mortgage  law  provides  that  the  prop- 
erty may  remain  in  the  possession  of  the  mortgagor  until 
the  mortgage  becomes  due,  if  it  is  specified  in  the  mortgage 


1871.]  TRAVIS  t>.  McCoEMiOK.  349 

This  court  decided  in  this  case  when  brought  here,  on 
the  order  of  the  court  below,  sustaining  a  demurrer  to  the 
answer,  that  the  property  could  remain  with  the  mortgagor 
no  longer  than  the  time  when  the  condition  of  the  mortgage 
became  absolute,  and  that  the  mortgagor  must  use  due 
diligence  to  obtain  possession  of  the  property  immediately 
after,  and  referred  to  decisions  in  the  State  of  Illinois  to 
sustain  the  position. 

W  hen  there  is  a  conflict  of  evidence,  this  court  will  pre- 
sume the  findings  of  the  court  below  correct,  and  will  not 
disturb  the  judgment,  although  it  appears  to  be  against  the 
weight  of  evidence  as  shown  in  the  statement. 

But  in  this  case  the  question  of  diligence  is  a  mixed 
question  of  law  and  fact,  and  there  being  no  conflict,  but 
the  case  resting  entirely  on  the  testimony  of  the  plaintiff, 
we  must  see  if  his  testimony,  as  it  appears  in  the  statement 
on  motion  for  new  trial,  constitutes,  in  law,  such  diligence 
as  the  mortgagor  is  bound  to  use  as  against  innocent  pur- 
chasers, after  the  mortgage  becomes  due,  to  obtain  posses- 
sion of  the  property. 

Plaintiff,  Travis,  testified  that  when  his  book-keeper  noti- 
fied him  the  note  was  due,  he  inquired  of  several  persons 
as  to  where  the  horse  was  ;  that  he  did  not  remember  who 
any  of  them  were  ;  that  the  horse  was  somewhere  about 
Helena  ;  that  he  inquired  of  a  man  who  had  cattle  on  the 
Missouri  river ;  did  not  recollect  when  the  note  became 
due ;  inquired  of  persons  who  knew  mortgagor,  and  was 
informed  he  had  gone  to  the  Musselshell ;  supposed  the 
horse  was  on  the  Missouri  river,  and  inquired  of  a  man 
living  there ;  that  this  was  all  the  search  he  made.  Saw 
horse  before  the  note  became  due,  but  not  after,  until  I  saw 
him  in  possession  of  defendant ;  never  went  out  to  make 
search ;  did  not  know  how  long  after  note  became  due 
before  I  made  inquiry.  The  debt  became  due  1st  of  May, 
1869,  and  the  defendant  purchased  the  horse  about  the  1st 
of  July. 

This  evidence  does  not  show  due  or  legal  diligence.  The 
plaintiff  testifies  it  might  have  been  a  month  before  he  made 


360  STORY  ®.  NOWLAN.  [Jan.  T., 

any  inquiry,  or  any  effort  to  get  possession  of  the  horse, 
after  the  debt  became  due  ;  that  he  did  not  make  any  search 
for  the  horse,  but  inquired  of  persons,  he  did  not  remember 
who,  etc. 

The  Illinois  supreme  court  has  decided,  under  a  similar 
statute  to  ours,  that  neglect  of  one  or  two  days  to  take 
possession  after  mortgage  became  absolute,  when  property 
was  in  same  town,  would  defeat  title  as  against  an  innocent 
purchaser. 

If  the  evidence  in  the  statement  showed  that  plaintiif 
made  inquiry  as  soon  as  practicable  after  the  debt  became 
due,  and  learned  that  the  horse  was  at  Musselshell,  in  the 
Indian  country,  not  accessible  with  the  mortgagor,  it  might 
be  diligence  to  keep  a  look  out  for  the  property  until  it 
came  within  reach,  and  then  take,  or  endeavor  to  take,  the 
possession  of  it.  The  law  only  requires  practicable  and 
due  diligence  under  all  the  circumstances  surrounding  the 
case.  The  evidence  in  the  statement  not  showing  this,  the 
case  is  reversed  and  remanded  for  new  trial. 

Judgment  reversed. 


STORY  et  al.,  respondents.  «.  NOWLAN  et  al.,  appellants. 

BANKRTTPTCY — preference  to  creditor.    In  this  case  the  court  found  that  a  firm 
had  committed  an  act  of  bankruptcy  by  giving  preference  to  a  creditor. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  facts  appear  in  the  opinion  of  the  court  and  the  dis- 
senting opinion.     The  decree  was  rendered  by  SYMES.  J. 

CLAGETT  &  DTXON  and  E.  W.  TOOLE,  for  appellants. 
The  court  erred  in  sustaining  the  demurrer  to  the  amended 
answer,  which  set  out  an  attachment  issued  and  levied  b\ 


1871.]  STORY  v.  NOWLAN.  361 

respondent,  Story,  for  his  debt  after  the  tiling  of  the  peti- 
tion. Such  a  proceeding  on  the  part  of  a  creditor  violates 
the  bankrupt  act.  §  39  of  Act ;  In  re  Princeton,  1  Bankr. 
Reg.  178  ;  In  re  Coleman,  2  id.  172.  The  demurrer  ad- 
mitted the  truth  of  the  allegation.  The  creditor  was  thereby 
debarred  from  proving  his  debt,  and  if  he  could  not  prove 
his  debt,  he  could  not  maintain  his  petition. 

The  declarations  of  Stateler  to  different  persons,  concern 
ing  the  drawing  of  money  out  of  the  bank  of  appellants  by 
Stateler  and  others,  were  improperly  admitted.  Stateler  was 
the  agent  of  appellants  in  managing  their  business.  Appel- 
lants were  bound  civilly  by  Stateler' s  acts  and  declarations 
as  to  matters  within  the  scope  of  his  authority,  and  no  fur- 
ther. He  could  not  commit  an  act  of  bankruptcy  for  ap- 
pellants. 1  Greenl.  Ev.,  §§  113, 114 ;  Story's  Agency,  §§  134- 
136.  As  to  authority  of  cashier  of  bank.  Id.,  §§  114,  115. 

A  general  assignment  for  all  creditors  is  not  an  act  of 
bankruptcy.  Langley  v.  Perry,  2  Bankr.  Reg.  180  ;  Sedg- 
wicJc  v.  Place,  1  id.  204  ;  1  Am.  Law  Times,  44. 

The  evidence  was  insufficient  to  support  the  findings  as  to 
the  preferred  payments  to  Stateler,  King,  and  Weir  &  Pope. 
The  decree  was  based  on  these  findings  and  facts.  These 
payments  were  made  by  Stateler  in  the  absence  of  appel- 
lants, and  without  their  knowledge,  consent  or  direction, 
and  were  never  ratified  or  confirmed  by  them.  Stateler  had 
no  authority  to  do  these  acts,  and  it  was  no  part  of  his  duty 
as  their  agent.  A  principal  is  never  liable  for  the  criminal 
acts  of  his  agent  unless  specially  authorized.  1  Pars,  on 
Cont.  73;  Story's  Agency,  §  456 ;  Vanderlnlt  \.  Richmond 
T.  Co.,  2  N.  Y.  479  ;  Clark  v.  Metropolitan  Bank,  3  Duer,  241 . 

Our  bankrupt  act  in  involuntary  bankruptcy  is  in  the 
nature  of  a  penal  statute  and  must  be  strictly  construed. 
3  Pars,  on  Cont,  429  ;  Smith's  Stilt.  Law,  <§  738.  740.  All  tin- 
grounds  for  involuntary  bankruptcy  involve  fraud,  jj  39. 
More  insolvency  is  not  of  itself  ground  for  involuntarx 
bankruptcy.  Dora  \.  Coinpton,  2  Bankr.  Reg.  182. 

The  intent  of  the  debtor  determines  the  question  of  fraud 
within  the  meaning  of  the  bankrupt  act.  AD  act  is  not 


362  STORY  n.  NOWLAN.  [Jan.  T. 

fraudulent  unless  it  was  meant  to  be  so.  Langley  v.  Perry , 
2  Bankr.  Reg.  180 ;  Bump  on  Bankr.  128-132 ;  James  on 
Bankr.  153,  166-167. 

The  acts  of  Stateler  were  quasi  criminal  so  far  as  they 
might  be  acts  of  bankruptcy.  Appellants  never  authorized 
such  acts  and  knew  nothing  of  their  commission  and  could 
not  intend  to  give  a  preference,  and  hence  could  not  com- 
mit an  act  of  bankruptcy. 

The  evidence  shows  that  respondent,  Story,  consented  to 
the  assignment,  and  the  court  erred  in  not  finding  this  fact. 
He  is  thereby  estopped  from  proceeding  in  bankruptcy,  or 
denying  the  legalitj^  of  the  assignment.  In  re  Sunderland, 
Law  Times,  73 ;  In  re  Schuyler,  2  Bankr.  Reg.  169  ;  In 
re  WTiitmore,  Law  Times,  105 ;  Ex  parte  Stray,  1  Bankr. 
Reg.  18. 

W.  F.  SANDERS  and  CHUMASERO  &  CHADWICK,  for  re- 
spondents. 

The  demurrer  was  properly  overruled.  In  re  Schuyler, 
2  Bankr.  Reg.  169. 

The  acts  of  respondent,  Story,  do  not  estop  him  from 
proceeding  in  this  case.  He  endeavored  to  get  the  property 
of  appellants  into  good  hands,  whence  it  would  be  forth- 
coming for  distribution  to  pay  creditors. 

Stateler  was  a  general  agent  about  a  particular  business. 
His  declarations,  while  properly  engaged  as  agent,  are  ad- 
missible as  part  of  the  res  gestce. 

Bankruptcy  in  modern  days  is  not  regarded  as  involving 
the  turpitude  it  formerly  did.  The  bankrupt  law  is  no  more 
penal  or  criminal  than  an  attachment  law,  under  which 
property  is  taken  without  the  debtor's  consent.  Bank- 
ruptcy is  a  private  tort.  1  Bish.  Grim.  Law,  §§  392,  405. 
Making  preferred  payments  under  the  bankrupt  act  is  not 
declared  a  crime  or  punished.  1  Lead.  Grim.  Gas.  241. 
The  question  as  to  Stateler  binding  his  employers  crimin- 
ally does  not  arise  in  this  case. 

The  payments  were  made  to  Weir  &  Pope,  and  King  and 
Stateler  by  the  express  authority  of  appellants,  or  while 


1871.]  STORY  v.  NOWLAN.  368 

Stateler  was  acting  in  his  principal's  business.  Appellants 
are  liable  therefor  in  either  case.  1  Whart.  Grim.  Law,  164 ; 
1  Bish.  Crim.  Law,  439,  440 ;  Rex  v.  Gutch,  Moody  &  M. 
433  ;  Commonwealth  v.  Nichols,  10  Mete.  259. 

Stateler  required  no  authority  to  pay  depositors  in  the 
bank  of  his  employers.  1  Am.  Lead.  Gas.  569.  If  an  agent  is 
instructed  not  to  do  certain  acts  within  the  scope  of  his  gen- 
eral authority,  but  does  the  acts,  the  principals  are  bound 
thereby.  Dispatch  L.  Packets  v.  Bellamy  M.  Co.,  12  N.  H. 
206,  223.  The  principal  is  held  to  the  duty  of  employing 
agents  that  will  obey  instructions.  Appellants  never  dis- 
avowed the  acts  of  Stateler  in  making  the  preferred  pay- 
ments. They  made  no  effort  to  get  back  the  money  that 
their  agent  paid  to  preferred  creditors. 

WARREN,  C.  J.  The  giving  of  preference  to  their  creditor 
Stateler,  to  the  amount  of  $30,000,  is  one  of  the  acts  of  bank- 
ruptcy found  by  the  judge  of  the  district  court.  This  was 
the  fact  sought  to  be  established  by  the  evidence  preserved 
in  the  record,  and,  in  determining  it,  all  the  evidence  con- 
cerning it  should  be  considered  together,  and,  so  consider- 
ing it,  I  am  compelled  to  the  conclusion  that  the  finding  of 
the  judge  in  this  particular  is  supported  by  the  evidence. 
It  is  unnecessary  to  review  the  other  findings.  The  findings 
and  adjudication  of  the  judge  of  the  district  court  are 
affirmed. 

Judgment  affirmed. 

KNOWLES,  J.,  dissenting.  This  proceeding  is  brought  to 
this  court  on  a  petition  for  a  review  of  the  adjudication  by 
the  Hon.  G.  Gr.  SYMKS,  Associate  Justice  of  this  court,  made 
while  holding  the  district  court  for  the  third  judicial  district, 
declaring  Nowlan  and  Weary  bankrupts. 

The  petition  of  Story  and  Bradway,  filed  herein,  makes 
various  allegations  of  acts  of  bankruptcy  committed  by 
Nowlan  and  Weary.  The  answer  of  Nowlan  and  Weary 
puts  in  issue  these  allegations.  It  confesses  an  assignment 
of  all  their  property  to  one  Thompson,  and  from  him  to 

VOL.  I. —45. 


364  STORY  v.  NOWLAN.  |  Jan.  T., 

one  Corbin,  for  the  benefit  of  all  their  creditors,  and  avers 
that  the  same  was  done  with  the  consent  of  petitioners, 
while  it  denies  that  the  same  was  done  with  the  intent  to 
hinder,  delay  or  defraud  their  creditors  or  to  defeat  the 
operation  of  the  bankrupt  act.  To  constitute  this  general 
assignment  an  act  of  bankruptcy,  it  must  have  been  done 
with  one  of  these  intents.  In  support  of  this,  see  the  re- 
ported decision  of  Justice  S WAYNE,  in  Langly  v.  Perry, 
2  Bankr.  Reg.  180,  and  Thos.  Farrin  v.  John  Crawford 
et  al.,  id.  181.  These  intents  are  facts  to  be  established  by 
the  evidence,  and  cannot  be  inferred  from  the  mere  fact  of 
such  an  asssignment.  I  am  well  aware  that  there  is  a  decis- 
ion adverse  to  this  view,  namely,  Langly  v.  Perry,  1  Bankr. 
Reg.  155,  but  this  decision  is  evidently  the  very  one  which 
Justice  SWAYNE  reversed  in  the  same  entitled  case  above 
referred  to.  This  issue  cannot  be  treated  then  as  though  it 
was  admitted,  and  made  the  foundation  for  the  above  adju- 
dication. When  a  court  below  finds  that  a  defendant  has 
committed  certain  specific  acts  of  bankruptcy,  upon  which 
it  evidently  based  its  adjudication,  and  which,  if  correctly 
found,  were  sufficient  to  warrant  the  adjudication,  it  will 
not  be  presumed  by  this  court  that  it  found  other  acts  than 
those  specified,  although  there  were  issues  presented  in  tho 
pleadings  upon  such  other  acts.  Only  those  acts  then  are 
to  be  considered  that  are  specified  in  the  findings  of  the 
court.  If  the  evidence  did  not  warrant  the  court  in  finding 
that  Nowlan  and  Weary  had  committed  these  acts,  the 
judgment  of  the  court  below  must  be  reversed. 

The  first  finding  of  the  judge  was  to  the  effect  that  Now- 
lan  and  Weary  had  committed  an  act  of  bankruptcy  in 
paying  to  their  clerk,  Stateler,  something  near  $30,000,  with 
the  intent  to  give  him  a  preference.  The  evidence  shows 
that  Nowlan  and  Weary  were  indebted  to  Stateler  in  about 
this  amount ;  that  he  was  the  cashier,  book-keeper  and 
teller  of  their  bank  at  Helena  ;  that  at  the  time  of  this  pay- 
ment neither  Nowlan  or  Weary  were  present,  Weary  boing 
at  Virginia  city,  and  Nowlan  at  the  Cable  mine ;  the  former 
one  hundred  and  twenty  miles  distant,  the  latter  some 


1871.]  STORY  v.  Now  LAN.  366 

eighty  miles.  The  only  evidence  offered  to  prove  that 
either  of  these  partners  had  directly  authorized  this  pay- 
ment was  the  testimony  of  one  Dunovan.  He  testified  that 
he  was  present  when  Stateler  paid  himself  out  of  the  funds 
in  the  bank,  and  that  at  that  time  Stateler  told  him  that  he 
had  an  understanding  or  agreement  with  Nowlan  and 
Weary,  that  in  case  of  a  crash  he  should  draw  out  sufficient 
to  pay  what  they  owed  him.  Counsel  for  defendants 
objected  to  this  testimony  of  Dunovan,  which  objection 
was  overruled,  and  to  this  ruling  defendants'  counsel  duly 
excepted.  It  is  contended  by  counsel  for  petitioners  that 
this  declaration  of  Stateler  was  part  of  the  res  gestce  of 
Stateler  taking  this  money  in  payment  of  himself.  The  res 
geslcB  of  a  transaction  is  something  that  was  said  or 
occurred  at  the  time  a  transaction  was  being  conducted, 
and  may  be  introduced  in  evidence,  when  the  same  is  the 
subject  of  controversy,  to  explain  or  throw  light  upon  it, 
but  the  res  gestce  of  one  transaction  cannot  be  introduced 
for  the  purpose  of  explaining  or  throwing  light  upon 
another.  As  to  another  transaction,  it  is  hearsay,  unless 
the  parties  to  be  affected  by  the  same  were  present  and 
acquiesced  therein.  This  evidence  could  not  be  introduced 
as  part  of  the  res  geslce  of  any  agreement  between  Stateler 
and  Nowlan  and  Weary  to  explain  or  throw  light  upon  the 
same.  In  considering  whether  or  not  Stateler  was  author- 
ized by  Nowlan  and  Wgary  to  make  this  payment  to  him- 
self, the  point  to  be  considered  is,  whether  or  not  there  was 
the  agreement  named  by  Dunovan.  For  flic  purpose  of 
establishing  or  explaining  any  such  agreement,  the  declara- 
tions of  Stateler,  so  far  as  they  affected  Nowlan  and  Weary, 
were  clearly  incompetent.  What  other  evidence  was  there 
presented  to  the  judge  to  warrant  him  in  finding  that  Now- 
lan and  Weary  had  ever  made  such  an  agreement  with 
Stateler  ?  None,  save  that  Stateler  was  retained  in  the  employ 
of  Nowlan  and  Weary,  after  the  time  the  judge  found 
them  insolvent,  when  he  had  it  in  his  power  to  make  him- 
self a  preferred  creditor.  Such  evidence  is  not  sufficient  to 
warrant  the  finding  of  such  an  agreement,  although  it  may 


866  STOBY  «.  NOWLAN.  [Jan.  T., 

be  a  strong  ground  of  suspicion  that  such  was  the  case.  A 
judge,  however,  cannot  act  upon  suspicions.  For  these 
reasons  I  do  not  think  the  court  below  was  warranted  in 
finding  any  such  agreement.  The  other  point  involved  in 
the  discussion  of  this  finding  is,  as  to  whether  the  authority 
given  to  Stateler,  as  cashier,  book-keeper  and  teller  of  the 
bank  of  Nowlan  and  "Weary,  was  sufficient  to  authorize 
him  to  make  a  payment  to  himself,  with  the  intent  to  give 
himself  a  preference.  This  point  is  involved  in  the  deter- 
mination of  the  other  two  findings  of  the  judge,  before 
whom  the  cause  was  heard,  and  will  be  discussed  in  con- 
nection with  them. 

The  second  finding  was,  that  Nowlan  and  Weary  had 
made  a  payment  to  one  King,  with  the  intent  to  give  him  a 
preference ;  and  the  third,  that  they  had  made  a  payment 
to  Messrs.  Wier  &  Pope,  with  the  intent  of  giving  them  a 
preference. 

The  evidence  shows  that  Stateler  went  to  King,  and  also 
to  Wier  &  Pope,  and  told  them  that  there  was  about  to  be 
trouble  at  the  bank  and  that  they  had  better  come  and 
draw  out  what  money  they  had  therein,  which  they  accord- 
ingly did.  Undoubtedly  if  Nowlan  and  Weary  are  bound 
by  these  acts  of  Stateler,  the  court  was  warranted  in  adju- 
dicating them  bankrupts,  for  it  is  evident  Stateler  intended 
to  give  these  persons  a  preference.  It  is  not  contended  that 
Nowlan  and  Weary  ever  gave  Stateler  any  direct  authority 
to  perform  these  acts,  or  ever  ratified  them  afterward.  It 
does  not  appear  that  up  to  the  time  of  this  trial  Nowlan 
and  Weary  had  any  knowledge  of  the  manner  in  which 
these  payments  were  made.  Neither  of  them  were  at  Helena 
at  the  time  the  same  were  made.  This  brings  us  to  the  con- 
sideration of  the  authority  possessed  by  Stateler,  as  book- 
keeper, cashier  and  teller  of  appellants'  bank.  In  general, 
it  may  be  said,  that  the  law  presumes  that  an  agent  has  all 
the  authority  necessary  for  conducting  the  business  intrusted 
to  him,  and  unless  some  notice  is  given  to  the  person  deal- 
ing with  such  agent  of  a  limitation  in  this  authority,  the 
principal  will  be  estopped  from  denying  it  in  any  contest  be- 


1871.]  STORY  v.  NOWLAN.  357 

tween  him  and  such  person,  where  the  latter  will  be  sub 
jected  to  any  loss  if  the  former  was  permitted  to  deny  this 
authority.  Was  the  business  intrusted  to  Stateler  of  such 
a  nature  as  to  authorize  him  to  commit  the  acts  of  bank- 
ruptcy specified  in  the  findings  of  the  court  ?  Stateler  had 
authority  undoubtedly  to  pay  all  checks  that  were  pre- 
sented to  that  bank  in  the  due  course  of  business.  Such 
payments  as  these,  however,  do  not  constitute  acts  of  bank- 
ruptcy. If  so,  then  the  payment  of  any  check  by  a  bank, 
or  any  sum  by  any  person,  being  at  the  time  insolvent, 
would  be  an  act  of  bankruptcy.  Payments  to  constitute 
acts  of  bankruptcy  must  be  made  with  the  intent  of  giving 
a  preference,  or  in  other  words,  the  payments  must  be  such 
as  amount  to  an  attempt  by  the  person  making  them  to 
parcel  out  his  effects  among  certain  of  his  creditors,  leaving 
the  debts  of  the  balance  unprovided  for.  They  are  pay- 
ments made  for  the  purpose  of  defeating  one  of  the  princi- 
pal objects  of  the  bankrupt  act,  namely,  the  general  distri- 
bution of  the  assets  of  a  bankrupt  among  all  his  creditors. 
Now,  such  payments  as  these  are  not  within  the  usual  scope 
of  the  business  of  a  banking-house.  Such  payments  are 
prohibited  by  law  since  the  passage  of  the  bankrupt  act, 
and  it  will  not  be  implied  that  an  agent  has  the  authority  to 
violate  the  provisions  of  law.  It  was  not  then  within  the 
scope  of  the  business  of  Stateler  to  make  payments  with  the 
intent  to  give  a  preference  to  the  parties  named.  Hilliard 
on  Bankruptcy  lays  down  this  rule  :  One  cannot  commit  an 
act  of  bankruptcy  by  the  conduct  of  his  agent  unknown 
to  him.  See  Hill,  on  Bankr.  24.  In  looking  over  the 
list  of  acts  that  constitute  a  man  a  bankrupt,  it  will  be 
readily  seen  that  it  would  be  impossible  to  bind  a  principal 
by  such  acts  of  his  agent  without  specific  authority.  It 
will  be  observed  that  many  of  the  acts  which  make  a  man 
liable  to  be  adjudged  a  bankrupt  involve  some  wrong  in- 
tent. To  make  a  principal  liable  for  the  intent  with  which 
his  agent  may  do  any  act,  it  appears  to  me  would  be  hold- 
ing him  to  too  strict  a  liability.  In  general,  I  should  say, 
that  a  court  in  bankruptcy  could  only  inquire  as  to  the  in 


358  STOBY  «.  NOWLAN.         [Jan.  T.,  1871.] 

tent  of  the  principal  in  authorizing  his  agent  to  perform  the 
act  complained  of,  and  that  the  intent  of  the  agent  could  in 
no  way  be  considered.  It  may  be  observed  upon  this  point, 
that  the  same  rule  should  not  prevail  in  bankruptcy  as 
where  a  principal  contracts  through  an  agent.  In  the  latter 
case  the  principal  is  bound  by  the  apparent  authority  of  his 
agent.  In  the  former  he  should  be  bound  only  by  the  actual 
authority  given  his  agent.  The  reason  for  the  rules  in  estop- 
pel should  not  apply  in  bankruptcy  upon  this  subject. 

It  does  not  appear  that  Story  actually  obtained  any  pref- 
erence by  means  of  his  attachment  process.  From  the 
answer  of  defendants  I  understand  the  law  to  be  that  a 
party  is  prohibited  only  from  proving  his  debt  when  he  has 
actually  obtained  a  fraudulent  preference.  It  may  also  be 
doubted  whether  the  defendants  could  raise  this  point,  for 
if  Story  and  Bradway  actually  have  obtained  a  fraudulent 
preference,  Nowlau  and  Weary  must  have  suffered  it,  and 
hence  do  not  possess  clean  hands  themselves,  and  courts  of 
equity  will  not  allow  parties  to  set  up  as  a  defense  a  fraud 
which  they  have  participated  in.  The  denial  of  the  right 
to  prove  a  claim  by  a  person  who  has  obtained  a  fraudulent 
preference  is  a  matter  that  the  other  creditors  can  take  ad- 
vantage of  after  the  adjudication  of  bankruptcy. 

The  court  below  did  not  find  upon  the  issue  as  to  whether 
Story  and  Bradway  had  consented  to  the  assignment  of 
Nowlan  and  Weary  to  Thompson,  and  from  Thompson  to 
Gorbin,  nor  upon  the  issue  as  to  whether  this  assignment 
was  made  with  the  intent  of  defeating  the  operation  of  the 
bankrupt  act.  This  court  will  not  determine  these  issues. 


CASES 
ARGUED  AND  DETERMINED 


or  THI: 


SUPREME  COURT 


AUGUST  TERM,   1871,    HELD   AT    VIRGINIA   CITY 


IPreeent : 

How.  DECIUS  S.  WADE,  CHIEF  JUSTIOB. 
HON.  HIRAM  KNOWLES,  ) 
HON.  JOHN  L.  MURPHY,  J  JUST[OW- 


TERRTTOBY  OF  MONTANA,  respondent,  v.  WHITOOMB  et  al., 

appellants. 

CRIMINAL  LAW — fornication.  Fornication  is  the  carnal  and  unlawful  Inter- 
course of  an  unmarried  person  with  the  opposite  sex. 

CRIMINAL  LAW  —  adultery.  Adultery  is  the  unlawful  sexual  intercourse,  01 
open  and  unlawful  living  together  of  a  man  and  woman,  when  one  or  both 
of  them  are  married . 

CRIMINAL  LAW  —  evidence  of  fornication  —  unmarried.  A  party,  who  has  beeu 
indicted  for  the  crime  of  fornication,  cannot  be  convicted  unless  it  is  alleged 
and  proved  that  he  was  unmarried  at  the  time  specified  in  the  indictment. 

JTTRY  —  private  knowledge  of  facts  —  verdict.  A  juryman  must  render  his  ver- 
dict according  to  the  testimony  legally  produced  in  open  court  at  the  trial. 
and  disregard  his  private  knowledge  or  belief. 


560  TERRITORY  OF  MONTANA  «.  WHITCOMB.  [Aug.  T., 

Appeal  from  the  Third  District,  Lewis  and  Clarke  Cownty. 

WHITOOMB  was  tried  by  a  jury  in  March,  1871,  before 
WARREN,  J.,  and  found  guilty  under  an  indictment  drawn 
upon  the  following  statute :  "Any  man  and  woman  who 
Bball  live  together  in  an  open  state  of  adultery  or  fornication, 
shall  be  indicted,  and,  on  conviction,  shall  be  fined  in  any 
sum  *  *  *  or  imprisoned"  *  *  *  .  Crim.  Prac. 
Act,  §  127  ;  Acts  1865,  208. 

The  facts  are  stated  in  the  opinion. 

W.  F.  SANDERS  and  LAWRENCE  &  HEDGES,  for  appel 
lant. 

Only  one  day  is  named  in  the  indictment  as  the  day  of 
the  commission  of  the  offense.  No  single  instance  of  forni- 
cation would  support  the  indictment.  2  Bish.  on  Crim.  Law, 
§§  26,  28 ;  Commonwealth  v.  Tubbs,  1  Gush.  2.  A  living 
together  one  day  in  an  open  state  of  fornication  would  not 
complete  the  offense  charged  in  the  indictment.  The  prose- 
cution having  selected  a  certain  day,  must  confine  the  evi- 
dence to  that  date.  CommonweaWi  v.  Wood,  4  Gray,  13. 

The  offense  charged  is  made  up  of  a  series  of  acts.  Evi- 
dence was  admitted  tending  to  show  that  defendant  was 
guilty  on  other  days  than  that  specified.  Time  enters  into 
the  essence  of  this  offense  and  fixes  its  identity.  Com- 
monwealth v.  Adams,  4  Gray,  27  ;  Commonwealth  v.  Pray, 
13  Pick.  364  ;  Commonwealth  v.  Briggs,  11  Mete.  573  ;  Com- 
monwealth v.  Elwell,  1  Gray,  463 ;  CoinmonwealtJi  v.  Per- 
ley,  2  Gush.  559  ;  Roscoe  on  Crim.  Ev.  84.  How  can  appel- 
lant defend  himself  by  this  judgment  on  his  plea  of  former 
conviction  ? 

The  instructions  of  the  court  respecting  the  proof  of  the 
unmarried  condition  of  appellant  were  erroneous.  The 
jury  were  allowed  to  form  their  opinion  on  material  facts 
without  evidence. 

J.  A.  JOHNSTON,  District  Attorney,  Third  District,  and  J. 
H.  SHOBER,  for  respondent. 
The  offense  charged  may  be  charged  as  committed  on  a 


187L]       TERRITORY  OF  MONTANA  v.  WHITCOMB.  361 

day  named.  No  continuando  is  necessary.  The  living  to- 
gether, as  set  forth  in  the  indictment,  was  a  question  of  fact 
for  the  jury.  2  Bish.  on  Crim.  Pr.,  §§  24,  29  ;  Hinson  v.  State, 
7  Mo.  244. 

WADE,  C.  J.  This  case  is  here  upon  appeal  from  the 
judgment  and  verdict  in  the  court  below,  and  from  the 
order  overruling  a  motion  for  a  new  trial. 

This  is  an  indictment  for  fornication,  drawn  upon  the  one 
hundred  and  twenty-seventh  section  of  the  "Act  concerning 
crimes  and  punishments,"  Statutes  1865,  p.  209,  wherein  it 
is  alleged  that  on  the  20th  day  of  January,  1869,  at  the 
county  of  Lewis  and  Clarke,  the  defendants  Edward  Whit- 
comb  and  Catharine  Durgen  did  then  and  there  unlawfully 
live  together  in  an  open  state  of  fornication,  the  said  Whit- 
comb  being  then  and  there  a  single  and  unmarried  man,  and 
the  said  Durgen  being  then  and  there  a  single  and  unmar- 
ried woman. 

This  was  the  separate  trial  of  the  defendant  Whitcomb. 
Among  the  errors  complained  of,  as  shown  by  the  record, 
are  the  following : 

1.  The  refusal  of  the  court  to  give  the  following  instruc- 
tion to  the  jury,  asked  for  on  behalf  of  the  defendant: 
"The  jury  are  instructed  that  it  devolves  upon  the  prose- 
cution to  prove  every  material  allegation  necessary  to  con- 
stitute the  crime  charged  ;  that  it  is  a  material   point  to 
prove  that  the  parties  charged  were  not  intermarried  ;  and 
that,  in  the  absence  of  any  testimony  upon  that  point,  the 
jury  cannot  presume  that  the  defendants  were  associating 
unlawfully." 

2.  The  giving  of  the  following  instruction  to  the  jury, 
asked  for  by  the  prosecution  :    ''That  it  devolves  upon  the 
prosecution  to  prove  every  material  allegation  necessary  to 
constitute  the  crime  charged  ;  that  it  is  a  material  point  that 
the  jury  should  believe  that  the  parties  charged  were  not 
intermarried,  and,  if  there  is  a  reasonable  doubt   upon  that, 
point,  the  jury  cannot  presume  that  the  defendants  were 
associating  unlawfully,  in  case  there  is  evidence  sufficient 

VOL.  L— 46. 


362  TERRITORY  OP  MONTANA  v.  WHITOOMB.  [Aug.  T., 

to  raise  a  reasonable  donbt  in  the  mind  of  the  jury  upon 
that  point." 

It  was  necessary  to  aver  in  the  indictment,  and  to  prove 
upon  the  trial,  that  the  defendant  was  single  and  unmarried ; 
for  the  meaning  of  the  term  "fornication"  is  the  carnal  and 
illicit  intercourse  of  an  unmarried  person  with  the  opposite 
sex.  It  is  impossible  for  a  married  man  and  a  married 
woman  to  commit  fornication.  Unlawful  sexual  intercourse, 
and  open  and  unlawful  living  together  of  a  married  man 
and  married  woman,  or  where  either  are  married,  and  thus 
have  intercourse  or  live  together,  is  adultery  ;  and  the  same 
state  of  facts  existing  between  unmarried  persons,  man  and 
woman,  is  fornication. 

We  have  carefully  examined  the  record  of  evidence  and 
testimony  in  this  case,  and  we  find  that,  upon  the  trial  of 
this  case,  there  was  no  testimony  offered  or  received,  show- 
ing, or  tending  to  show,  that  these  defendants  were  not 
married  at  the  time  the  crime  is  alleged  to  have  been  com- 
mitted. 

If  they  were  living  together  in  an  open  and  notorious 
manner,  it  would  be  but  a  reasonable  presumption  to  pre- 
sume that  they  were  so  living  lawfully  and  as  they  had  a 
right  to  do,  and,  in  the  absence  of  any  proof  to  show  that 
they  were  unmarried,  a  conviction  for  fornication  ought  to 
be  impossible.  Even  the  married  condition  of  either  of  the 
parties  would  change  the  nature  of  the  crime,  so  that  the 
married  or  unmarried  condition  of  these  defendants,  or 
either  of  them,  was  a  most  material  inquiry  upon  the  trial, 
and  the  absence  of  any  proof  upon  the  subject  renders  a 
conviction  legally  impossible. 

The  foregoing  instruction  asked  for  and  given,  on  behalf 
of  the  prosecution,  is  inherently  wrong.  It  will  be  observed 
that  it  authorizes  the  jury  to  form  an  opinion  as  to  the 
married  or  unmarried  condition  of  these  defendants,  from 
their  own  knowledge  and  belief,  in  the  absence  of  any  tes- 
timony on  the  subject. 

It  is  an  old  and  familiar  doctrine  that  juries  must  have 
or  form  no  belief,  except  what  they  believe  from  the  testi- 


1871.]  SIMONTON  V.  KELLY.  363 

mony  produced  before  them  at  the  trial.  Any  other  rule 
would  destroy  this  guardian  of  our  rights  and  liberties  — 
the  trial  by  jury.  The  jury  must  believe  from  the  testi- 
mony, legally  produced  before  them  in  open  court,  and 
from  that  alone  ;  and  any  instruction  of  the  court  that  per- 
mits the  private  belief  or  private  knowledge  of  a  juryman 
to  sway  his  findings  or  his  judgment  is  wrong  and  beyond 
remedy. 
The  judgment  of  the  court  below  is  set  aside,  and  a  new 

trial  granted. 

Exceptions  sustained. 


SIMONTON,  respondent,  v.  KELLY  et  al.,  appellants. 

PRACTICE  —  taking  of  exceptions  —  presumption  of  time  and  manner.  This 
court  will  presume  that  exceptions  were  taken  at  the  proper  time,  and  in 
the  proper  manner,  if  the  record  shows  that  a  party  "duly  excepted"to 
the  refusal  of  the  court  below  to  give  instructions. 

PKACTICE — general  exception  not  regarded.  A  general  exception  which  does 
not  point  out  the  particular  error  complained  of  will  be  disregarded  if  a 
part  of  the  instructions  is  correct. 

EVIDENCE  —  proof  of  special  contract.  A  party  who  brings  an  action  upon,  a 
special  contract  cannot  recover,  if  he  does  not  establish  the  contract,  as 
alleged  in  his  complaint,  and  prove  that  he  has  complied  with  its  terms. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

SIMONTON  brought  this  action  in  April,  1870,  to  recover 
$9o(),  and  interest,  and  have  a  decree  for  the  sale  of  certain 
premises.  The  case  was  tried  in  April,  1870,  in  the  district 
court,  SYMES,  J.,  and  the  jury  returned  a  verdict  for 
Simonton.  The  facts  are  stated  in  the  opinion. 

E.  W.  &  J.  K.  TOOLE,  for  appellants. 

The  evidence  and  verdict  show  that  respondent  did  not 
perform  the  conditions  of  the  contract  on  his  part.  The 
court  instructed  the  jury  to  find  upon  a  quantum  meruit. 


364  SIMONTON  v.  KELLY.  [Aug.  T., 

This  was  error.  The  court  refused  to  instruct  the  jury  that 
they  could  not  find  for  respondent,  except  they  found  a 
contract  as  charged.  A  party  cannot  sue  upon  a  special 
contract,  and  recover  upon  a  quantum  meruit. 

CHUMASEBO  &  CHADWICK,  for  respondent. 

No  exceptions  are  saved  to  the  instructions  except  a  gen- 
eral one  to  all.  This  court  cannot  notice  such  exceptions. 
The  errors  assigned  in  appellant's  brief  are  not  set  forth  in 
his  motion  for  a  new  trial,  and  cannot  be  assigned  for  the 
first  time  in  this  court. 

The  question  at  issue  related  to  the  contract  between  the 
parties  as  stated  in  the  complaint.  The  evidence  was  con- 
flicting, but  the  jury  determined  the  issue  in  favor  of 
respondent. 

KNOWLES,  J.  This  is  an  action  to  foreclose  a  mechanic's 
lien.  The  fact  as  to  the  amount  due  the  plaintiff  was  sub- 
mitted to  a  jury. 

The  complaint  contains  the  following  averment :  "Plain- 
tiff alleges  that  from  the  20th  day  of  June,  A.  D.  1869,  k> 
the  15th  day  of  August,  at  the  special  instance  and  request 
of  the  said  defendant  Henrietta  Kelly,  and  by  virtue  of  an 
agreement  and  contract  made  with  her,  this  plaintiff  fur- 
nished materials  and  performed  labor,  which  said  agree- 
ment amounted  to  the  sum  of  $1,500,  and  was  reasonably 
worth  said  amount." 

From  this  averment  there  might  be  some  doubt  whether 
the  plaintiff  intended  to  declare  on  a  special  contract  or  on 
a  quantum  meruit.  The  defendant,  in  her  answer,  puts  in 
issue  this  allegation  as  though  it  was  an  averment  on  a 
special  contract.  The  only  testimony  offered  by  the  plain- 
tiff upon  this  issue  is  as  follows  : 

"I  agreed  with  her  to  furnish  all  the  carpenter  work, 
painting  and  glazing  for  her  building  for  the  sum  of  $1,500. 
She  agreed  to  this,  and  it  was  further  agreed  that  she  should 
pay  this  by  the  15th  of  August,  1869.  and,  if  she  failed  tc 
pay  at  this  time,  then  was  to  pay  interest  thereon.'' 


1871.]  SIMONTON  TJ.  KELLY.  366 

This  was  evidence  given  by  the  plaintiff  himself.  No 
evidence  whatever  was  introduced  to  show  the  reasonable 
value  of  the  labor  and  materials  furnished.  The  second 
instruction  given  by  the  court  reads  as  follows : 

"This  is  an  action  to  prove  an  express  contract  for  labor 
and  materials  furnished  by  plaintiff  to  the  defendants,  and 
if  the  jury  find,  from  the  evidence,  that  plaintiff  has  com- 
plied with  his  contract,  he  is  entitled  to  recover  the  contract 
price  for  such  labor  and  materials  furnished,  deducting  any 
payment." 

Taking  the  allegations  of  the  complaint  and  answer, 
together  with  the  evidence  and  this  instruction,  and  the  con- 
clusion is  inevitable  that  this  was  treated  as  an  action  on 
a  special  contract. 

The  defendants  offered  the  following  instructions,  which 
were  refused : 

1.  "If  the  jury  believe,  from  the  evidence,  that  the  plain- 
tiff made  a  special  contract  with  defendant  Henrietta  Kelly 
to  do  the  carpenter  work  upon  her  building,  and  that  plain- 
tiff failed  to  perform  said  work  according  to  the  terms  of 
his  contract,  then  they  will  find  for  the  defendant." 

2.  "If  the  jury  believe,  from  the  evidence,  that  there  was 
no  special  contract  between  plaintiff  and  defendant,  Hen- 
rietta Kelly,  they  will  find  for  defendant." 

3.  "  If  the  jury  believe,  from  the  evidence,  that  the  plain- 
tiff agreed  to  do  the  defendant  a  good  job  in  a  good  work- 
manlike manner,  and  that  the  job  done  is  not  a  good  job, 
or  done  in  a  good  workmanlike  manner,  they  will  find  for  the 
defendant." 

4.  "If  the  jury  believe,  from  the  evidence,  that  there  was 
a  contract  between  the  plaintiff  and  defendant,  Henrietta 
Kelly,  but  that  plaintiff  failed  to  carry  out  said  contract 
according  to  its  terms,  then  he  cannot  recover  from  defend- 
ant upon  such  contract." 

"  Refused.     Others  given  upon  this  point." 
To  the  refusal  of  the  court  to  give  these  instructions  the 
record  shows  that  the  defendant,  by  her  counsel,  "  duly  ex- 
cepted."     When  the  record,  as  in  this  case,  shows  that  the 


366  SIMONTON  v.  KELLY.  [Aug.  T.^ 

rulings  of  the  court  were  duly  excepted  to,  this  court  must 
presume  that  the  exceptions  were  taken  at  the  proper  time 
and  in  the  proper  manner.  The  objection  urged  by  re- 
spondents that  this  exception  is  too  general,  is  not  well 
taken,  for  even  if  this  is  a  general  exception  then  the  ques 
tion  presented  to  us  to  determine  is,  was  the  ruling  of  the 
court  in  refusing  any  of  these  instructions  proper  ?  If  every 
one  of  these  instructions  should  have  been  given,  then  the 
exception  is  sufficient.  Courts  will  disregard  a  general  ex- 
ception only  when  it  does  not  point  out  the  specific  error 
complained  of,  and  it  appears  that  a  part  of  the  instruc- 
tions given  were  good.  We  hold  that  these  four  instruc- 
tions should  have  been  given,  and  the  exception  covers  these 
four  instructions  and  these  only. 

The  record  does  not  show  that  any  other  instruction  cov- 
ering the  point  presented  in  instruction  four  was  given  by 
the  court. 

The  defendant  introduced  evidence  to  show  that  the  plain- 
tiff failed  to  comply  with  the  contract  to  which  he  had  tes- 
tified, that  the  work  was  not  done  in  a  good  and  workman- 
like manner,  and  that  no  express  contract  had  ever  been 
entered  into  between  plaintiff  and  defendant,  and  these 
issues  were  presented  by  the  answer. 

It  is  a  well-established  principle  that  a  party  must  stand 
by  the  case  he  has  made  out  for  himself  in  his  pleadings 
and  proof.  If  a  party  sets  forth  a  special  contract  in  his 
complaint,  he  cannot  recover  unless  he  establishes  by  the 
proof  this  contract,  and  it  is  error  in  a  court  to  refuse  to 
instruct  a  jury  if  he  fails  to  establish  by  the  proof  the  con- 
tract he  has  alleged  he  cannot  recover.  So  if  a  party  sues 
upon  a  special  contract  and  it  appears  from  the  testimony 
that  he  has  failed  in  a  material  part  to  perform  this  con- 
tract on  his  part,  he  cannot  recover  thereon,  and  it  was 
error  to  refuse  to  instruct  the  jury  in  this  case  to  this 
effect.  These  four  instructions  asked  for  on  the  part  of  the 
plaintiff  were  directed  to  these  two  points.  They  were 
proper  issues  in  the  case,  and  testimony  had  been  given 
upon  them. 


1871.]  PINJSEY  v.  KEKSHFIELD.  367 

It  was  error  in  the  court  to  refuse  to  give  them,  and  one 
that  it  will  be  presumed  materially  affected  the  rights  of  the 
defendant. 

Judgment  of  the  court  below  reversed  and  cause  re- 
manded. 

Exceptions  sustained. 

This  case  was  before  the  court  at  the  August  term,  1872 
(see  page  483). 


PINNEY,  respondent,  v.  HEBSHFIELD  et  al.,  appellants. 

PRACTICE  —  statement — specific  errors.  A  statement  on  a  motion  for  a  new 
trial  is  sufficient  if  it  points  out  in  an  intelligent  manner  the  specific  erron 
relied  on  by  the  appellant. 

PLKADING  —  complaint  on  attachment  bond  —  allegation — damages.  In  an  action 
against  the  sureties  on  an  attachment  undertaking  to  recover  the  damages 
caused  by  the  wrongful  suing  out  of  the  attachment  writ,  the  complaint 
must  allege  that  the  principal  has  not  paid  the  damages. 

ATTACHMENT  UNDERTAKING  —  co'ntract  of  sureties.  The  contract  of  the  sure- 
ties in  an  attachment  undertaking  is  in  the  nature  of  a  guaranty  that  the 
principal  will  pay  the  costs  and  damages  sustained. 

Appeal  from  the  Third  District,  Lewis  and  Qlarke  County. 

PINNEY  commenced  this  action  in  September,  1869.  The 
cause  was  tried  in  March,  1870,  by  a  jury,  that  returned  a 
verdict  for  Pinney  for  $1,300.  The  court,  SYMES,  J.,  over- 
ruled the  motion  for  a  new  trial. 

The  facts  appear  in  the  opinion. 

W.  F.  SANDERS,  for  appellant. 

The  complaint  should  allege  a  breach  of  the  undertaking, 
that  Whitlatch  did  not  pay  the  damages.  1  Chitty'  s  PI.  332  ; 
Hayden  v.  Sample,  10  Mo.  215  ;  2  Sanders'  PI.  181 ;  Love  v. 
Redwell,  4  Blackf.  553 ;  Fletcher  v.  Peck,  6  Cranch,  127 ; 
Hughes  v.  Smith,  o  Johns.  168  ;  Smith  v.  Jansen,  8  id. 
Ill  ;  Potter  v.  Bacon,  2  Wend.  583 ;  Jullian  v.  Burgott,  11 
Johns.  6. 


868  PINNEY  v.  HERSHFIELD.  [Aug.  T., 

There  is  no  allegation  of  damages  that  would  enable  re- 
spondent to  introduce  proof.  Appellants  agreed  that,  on 
the  happening  of  a  contingency,  Whitlatch  would  pay 
damages  sustained  by  reason  of  the  attachment.  The  court 
extended  appellants'  liability  to  pay  respondent  his  costs, 
trouble  and  expense  in  defending  against  the  suit.  Appel- 
lants never  assumed  this  liability.  In  these  respects  the 
complaint  was  fatally  defective.  Stephen's  PL  146  ;  Kent 
v.  Snyder,  30  Cal.  666 ;  Green  v.  Palmer,  15  id.  411 ;  Abbe 
v.  Marr,  14  id.  210. 

The  contract  of  a  surety  is  favorably  regarded  in  law. 
The  words  used  in  his  agreement  are  not  to  be  extended  be- 
yond their  clear  import. 

The  following  authorities  were  referred  to  and  cases 
therein  cited :  Sedgw.  on  Dam.  453,  465  ;  1  Estee's  PL  237  ; 
1  Hill,  on  Torts,  422. 

H.  L.  WARREN  and  W.  E.  CULLED,  for  respondent. 

The  statement  on  the  motion  for  a  new  trial  does  not 
specify  the  particular  errors  relied  on,  as  required  by  the 
statute,  and  must  be  disregarded.  Civ.  Prac.  Act,  §  195  ; 
Harper  v.  Minor,  27  Cal.  109  ;  Barret  v.  Tewksbury,  15  id. 
356 ;  Zenith  G.  &  S.  M.  Co.  v.  Irvine,  32  id.  302  ;  Love  v. 
Sierra  N.  L.  W.  &  M.  Go.,  id.  639;  Beans  v.  Emanuelli^ 
36  id.  121  ;  Oaldwell  v.  Qreeley,  5  Nev.  260. 

All  that  remains  for  review  are  the  pleadings,  verdict  and 
judgment. 

No  appeal  lies  from  an  order  overruling  a  demurrer. 
3  Estee's  PL  647 ;  Ford  v.  David,  13  How.  Pr.  193  ;  Young 
v.  Grundy,  6  Cranch,  51 ;  St.  Paul  Division  v.  Brown,  9 
Minn.  151. 

Appellants'  authorities  are  not  applicable.  They  refer  to 
common -law  actions  on  bonds  for  a  penalty  with  conditions, 
breaches  of  which  must  be  assigned  in  the  declaration. 
This  action  is  upon  a  statutory  undertaking,  executed  in 
pursuance  of  the  civil  practice  act,  which  is  peculiar  in  form. 
Civ.  Prac.  Act,  §  122. 

Whitlatch  should  have  been  principal  in  the  undertaking, 


1871.]  PINNEY  «.  HERSHFIELD.  369 

and  appellants  cannot  take  advantage  of  his  failure  to  exe- 
cute it,  and  are  estopped  from  denying  its  sufficiency.  The 
undertaking  is,  that  "  if  the  defendant  recover  judgment, 
the  plaintiff  will  pay,"  etc.  The  complaint  alleges  that 
defendant  "recovered  judgment"  in  the  action  in  which 
the  undertaking  was  given.  The  undertaking  to  pay  costs 
and  damages  then  became  absolute  upon  appellants.  The 
averment  of  indebtedness  was  made  in  the  complaint,  and 
there  is  no  presumption  of  payment  which  it  is  necessary 
to  negative.  Payment  must  be  pleaded  and  proven  in  de- 
fense. 2  Whit.  Prac.  114. 

KNOWLES,  J.  This  is  an  action  on  an  attachment  under- 
taking, to  recover  damages  occasioned  the  plaintiff  on 
account  of  the  wrongful  suing  out  of  said  writ.  It  appears 
that  the  appellants  appeal  to  this  court  from  the  order  over- 
ruling the  motion  for  a  new  trial,  and  from  the  judgment 
of  the  court  below. 

The  respondent  urges  that  there  is  not  such  a  specifica- 
tion of  errors  in  the  statement  on  a  motion  for  a  new  trial 
as  will  justify  this  court  in  considering  it. 

The  statutes  of  this  Territory  provide  that  a  statement 
"shall  state  specifically  the  particular  errors  or  grounds 
upon  which  he  intends  to  rely  on  the  appeal,  and  shall  con- 
tain so  much  of  the  evidence  as  may  be  necessary  to  explain 
the  particular  errors  or  grounds  specified  and  no  more." 
See  Stat.  of  1867,  p.  199. 

We  do  not  propose  to  lay  down  any  rules  which  shall 
prescribe  the  manner  in  which  these  errors  or  grounds, 
upon  which  the  appellant  will  rely  for  a  reversal,  must 
appear.  So  that  they  are  pointed  out  specifically,  in  some 
intelligible  manner,  is  all  that  we  require.  The  statement, 
however,  under  consideration  we  do  not  think  does  this, 
and,  hence,  hold  that  we  cannot  consider  the  same.  The 
appeal  from  the  judgment  brings  to  this  court  the  judgment 
roll. 

The  undertaking,  upon  which  this  action  was  brought, 
reads  as  follows : 
VOL.  I.— 47. 


370  PINNEY  v.  HERSHFIELD.  [Aug.  T., 

"Know  all  men  by  these  presents:  That  we,  , 

as  sureties  for  James  W.  Whitlatch,  do  undertake  in  the 
sum  of  five  thousand  four  hundred  dollars,  that  if  the  de- 
fendant in  the  action  of  James  W.  Whitlatch  against  George 
M.  Pinney,  this  day  commenced  in  the  district  court,  third 
judicial  district  of  the  Territory  of  Montana,  sitting  in  and 
for  Lewis  and  Clarke  county,  shall  recover  judgment,  that 
the  said  Whitlatch  will  pay  all  costs  that  may  be  awarded 
said  Pinney,  and  all  damages  which  he  may  sustain  by 
reason  of  the  attachment  in  said  action,  not  exceeding  the 
sum  aforesaid. 

"Witness  our  hands  and  seals  this        day  of  June,  1869. 
"L.  H.  HERSHFIELD.     [L.  s.] 
"ALEX.  H.  BEATTIE."   [L.  s.] 

The  complaint  in  this  action  does  not  state  that  the  said 
Whitlatch  had  not  paid,  or  refused  to  pay,  the  costs  and 
damages  sustained  by  the  plaintiff. 

The  appellants  demurred  to  this  complaint  for  this  reason, 
assigning  that  the  complaint  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  Undoubtedly  the  appellants, 
in  this  contract,  made  themselves  liable  to  pay  the  costs  and 
damages  sustained  by  the  respondent,  in  case  the  said 
Whitlatch  did  not.  Their  contract  is  in  the  nature  of  a 
guaranty.  They  do  not  undertake  that  they  will  pay  all 
costs  and  damages,  sustained  by  respondent,  themselves, 
but  that  Whitlatch  will  pay  them. 

A  demand  on  the  principal  debtor,  and  a  failure  on  his 
part  to  do  that  which  he  is  bound  to  do,  are  requisite  to 
found  any  claim  against  the  guarantor.  2  Pars,  on  Cont.  29. 

In  the  case  of  Tarpey  v.  SMlleriberger  et  «Z.,  10  Cal.  390. 
BALDWIN,  J.,  says  :  "The  condition  of  the  undertaking  is. 
that  the  plaintiffs  in  the  suit  for  whom  the  sureties  under- 
took should  pay  all  damages  and  costs  that  should  be 
awarded  against  the  plaintiffs  by  virtue  of  the  issuing  of 
said  injunction  by  any  competent  court.  No  sufficient 
breach  is  averred,  since  it  is  not  alleged  that  any  dnnmovs 
were  so  awarded.  The  sureties  are  entitled  to  stand  or,  the 


1871.]       TERRITORY  EX  REL.  LARGEY  0.  GILBERT.          371 

precise  terms  of  the  contract,  and  we  know  of  no  way  of 
extending  their  liability  beyond  the  stipulation  to  which 
they  have  bound  themselves." 

This  case  shows  that  the  complaint  must  allege  sufficient 
to  manifest  that  the  condition  upon  which  parties  to  an 
undertaking  were  to  become  liable  has  transpired.  WV 
can  see  no  difference  between  this,  where  parties  were  to 
become  responsible  in  the  event  that  their  principal  did  not 
perform  his  obligation,  and  in  the  case  where  persons  were 
to  become  liable  on  the  condition  that  another  person  did 
not  perform  his  duty  as  an  officer.  In  such  a  case  the 
authorities  are  abundant,  to  the  effect  that  the  complaint 
must  show  that  the  officer  has  not  performed  his  duty. 
This  failure  is  the  breach  of  their  contract,  and  must  be 
alleged. 

We  hold,  therefore,  that  it  was  necessary  for  the  respond- 
ent to  have  alleged,  in  his  complaint,  that  the  said  Whit- 
latch  had  not  paid  said  damages  ;  and,  hence,  the  court 
below  erred  in  overruling  the  demurrer  of  appellants. 

For  these  reasons  the  judgment  of  the  court  below  is 
reversed,  and  the  cause  remanded. 

Exceptions  sustained. 


TERRITORY  ex  rel.    LARGEY,  appellant,   D.   GILBERT,   re- 
spondent. 


STATUTORY  CONSTRUCTION  —  act  relating  to  interest  on  county  ifarratUs  —  in- 
dorsement »/.  Under  the  statute  entitled  "An  act  authorizing  county  com- 
missioners to  pay  interest  on  county  warrants,"  approved  February  8,  186JS. 
the  duty  of  making  the  indorsement,  "not  paid  for  want  of  funds  in  the 
treasury,"  on  the  warrant,  devolves  on  the  county  treasurer;  and  the 
court,  by  a  writ  of  mandate,  can  compel  him  to  make  this  indorsement  at 
the  time  the  party  was  entitled  thereto. 

IHTKREOT  ON  COUNTY  WARRANTS — no  indorsement  by  treasurer.  The  neglect  »f 
the  county  treasurer  to  properly  Indorse  a  county  warrant  that  has  be.  a 
duly  presented  to  him  for  payment,  does  not  release  the  count v  from  its 


372        TERRITORY  EX  REL.  LARGEY  v.  GILBERT.      [Aug.  TM 

liability  to  pay  the  interest  authorized  by  the  statute,  and  the  court  will 
regard  the  indorsement  as  made,  because  it  should  have  been  made. 

EQUITY  — maxim  applied  —  mandamus.  An  application  for  a  writ  of  mandate 
is  an  equitable  proceeding;  and  the  maxim  in  equity  that  "equity  looks 
upon  that  as  done  which  ought  to  have  been  done,"  is  applicable  to  this 
case. 

STATUTORY  CONSTRUCTION  —  "  not  paid  for  want  of  funds."  It  was  the  inten- 
tion of  the  legislature  that  the  indorsement  "  not  paid  for  want  of  funds 
in  the  treasury,"  should  show  that  the  county  warrant  had  been  presented 
for  payment  at  a  certain  time,  and  that  payment  had  been  refused  for  want 
of  funds  in  the  treasury ;  it  was  not  intended  to  be  an  arbitrary  condition 
provided  for  the,  sole  purpose  of  making  county  warrants  draw  interest. 

STATUTORY  CONSTRUCTION — act  relating  to  payment  of  county  warrants  —  act 
repealed.  The  act  entitled,  "An  act  defining  the  duties  of  county  treas- 
urers, and  the  payment  of  county  warrants,"  approved  November  19,  1867, 
provides  for  the  preservation  of  the  order  in  which  county  warrants  have 
been  presented  for  payment,  and  repeals  the  act  entitled  "An  act  authoris- 
ing county  commissioners  to  pay  interest  on  county  warrants,"  approved 
February  8,  1865,  which  provides  for  a  different  means  of  preserving  such 
order. 

Appeal  from  the  First  District,  Madison  County. 

JUDGMENT  was  rendered  in  this  case  in  April,  1871,  by 
MURPHY,  J.  The  warrant  that  was  the  subject  of  the  action 
was  bought  by  Largey,  February  16,  1869.  The  other  facts 
appear  in  the  opinion. 

Section  2  of  the  act,  approved  November  19,  1867,  is  as 
follows  :  "It  shall  be  the  duty  of  the  several  county  treas- 
urers within  the  Territory,  to  keep  a  book  in  which  they 
shall  enter  all  county  warrants  of  their  proper  county  pre- 
sented for  payment,  in  the  order  in  which  they  are  presented, 
giving  the  name  of  the  owner,  the  number  and  amount  of 
the  warrants,  and  they  shall  be  paid  in  the  order  in  which 
they  are  presented." 

H.  L.  WARREN,  for  appellant. 

The  demurrer  confesses  the  allegations  of  the  complaint. 
The  payment  of  the  warrant  was  a  ministerial  act,  to  compel 
which  mandamus  was  the  proper  remedy.  Acts,  1865,  517, 
§  6  ;  Moses  on  Mandamus,  99  ;  Crandall  v.  Amador  County \ 
20  Cal.  75  ;  Dana  v.  San  Francisco,  19  id.  486. 

The  statutes  relating  to  the  payment  of  the  warrant  were 
as  follows  ;  Act  Feb.  8,  1865,  447 ;  Act  Nov.  19,  1867.  59 ; 


1871.]       TERRITORY  EX  REL.  LARGEY  ».  GILBERT.  373 

Act  Jan.  14,  1869,  85.  These  statutes  are  to  be  construed 
together.  Smith  on  Stat.  Law,  752. 

The  provision  of  the  act  of  1865,  as  to  the  indorsement 
of  words  on  order,  not  being  of  the  essence  of  the  thing  to 
be  done,  is  directory  and  not  mandatory.  Smith  on  Stat. 
Law,  792. 

The  direction  to  indorse  the  words  is  to  the  respondent, 
and,  if  he  fails  to  comply,  he  cannot  take  advantage  of  his 
own  wrong,  to  the  injury  of  appellant,  by  refusing  to  pay 
the  interest  for  that  reason.  The  warrant  was,  in  both  in- 
stances, presented  to  the  treasurer  for  payment,  and,  in 
default  of  such  payment,  bore  interest  under  the  act  of  1865. 
Under  the  act  of  1865,  interest  ran  from  date  of  presenta- 
tion and  failure  to  pay  ;  under  the  act  of  1867,  the  warrant 
was  payable,  with  the  interest,  in  the  order  of  registration. 
The  two  acts  do  not  conflict,  and  are  to  be  construed 
together. 

H.  N.  BLAKE,  district  attorney,  first  district,  for  re- 
spondent. 

The  writ  of  mandate  cannot  issue,  in  this  case,  if  respond- 
ent is  not  required  to  perform  an  act  which  the  law  specially 
enjoins  as  a  duty  resulting  from  his  office.  Civ.  Prac.  Act, 
§§  442,  443 ;  People  v.  Romero,  18  Cal.  91 ;  Crandall  v. 
Amador  County,  20  id.  75. 

Respondent's  duty  is  defined  by  law.  Acts  1865,  517, 
518,  §§  6,  7.  He  cannot  pay  out  county  moneys,  except 
when  "specified  provision"  is  made  therefor  by  law. 

The  only  law  allowing  interest  on  county  warrants  is  the 
act  of  February  8,  1865,  p.  447.  Full  force  is  to  be  given 
to  every  word  thereof.  The  intention  is  clear.  San  Fran- 
cisco v.  Hazen,  5  Cal.  171. 

The  law,  being  in  derogation  of  the  common  law,  must 
be  construed  strictly.  Appellant  cannot  recover  interest 
without  the  indorsement  "not  paid,"  etc.  Raun  v.  Rey- 
nolds, 11  Cal.  19  ;  Beats  v.  Supervisors,  28  id.  453-455. 

The  importance  of  this  indorsement  is  established  by 
decisions  in  California  under  a  similar  statute.  Taylor  v. 


374          TERRITORY  EX  REL.  LARGEY  ».  GILBERT.  [Aug.  T. 

Brooks,  5  Cal.  332 ;  McDonald  v.  Bird,  18  id.  195 ;  Dana 
v.  San  Francisco,  19  id.  486 ;  Seals  v.  Supervisors,  28  id. 
453  ;  Hose  v.  Estudillo,  39  id.  273. 

The  transfer  of  the  warrant  from  Davis  to  Largey  gave 
Largey  no  rights  not  possessed  by  Davis.  Ferris  v.  Goober, 
11  Cal.  175. 

No  charge  of  neglect  is  made  against  the  first  treasurer 
by  Largey.  If  he  refused  to  indorse  the  warrant  a  writ  of 
mandate  would  compel  him  to  do  so.  The  law  presumes 
that  all  officers  do  their  duty.  JBgery  v.  Buchanan,  5 
Cal.  56. 

The  first  treasurer  indorsed  the  warrant  under  the  act  of 
November  19,  1867.  Acts  1867,  59.  Gilbert  cannot  be  sued 
if  another  treasurer  had  neglected  his  duty. 

KNOWLES,  J.  This  is  an  action  of  mandamus  against  the 
respondent,  Dezell  Gilbert,  as  county  treasurer  of  Madison 
county,  to  compel  him  to  pay  interest  on  a  certain  county- 
warrant  of  said  county,  which  it  is  alleged  he  has  refused 
to  do. 

It  appears  from  the  complaint  that  the  appellant  is  now 
the  owner  of  county  warrant  of  Madison  county  No.  1560, 
dated  August  5,  1868,  for  $400.  That  on  the  6th  day  of 
said  August,  the  same  was  presented  to  one  A.  S.  Potter, 
then  treasurer  of  said  Madison  county,  and  not  paid  by  him 
for  want  of  funds  in  said  county  treasury.  That  on  the  day 
of  said  presentment  for  payment,  the  said  Potter  made  an 
^ntry  in  a  book  kept  by  law  in  said  treasurer's  office  of 
he  name  of  the  then  owner  of  said  warrant,  the  number 
and  amount  thereof,  and  indorsed  thereon,  "registered 
August  6,  1868,  A.  S.  Potter,  County  Treasurer."  It  ap- 
pears further,  that  sufficient  money  had  come  into  the. 
hands  of  the  said  Gilbert,  as  county  treasurer,  to  pay  said 
warrant  and  interest  thereon,  but  that  the  said  Gilbert  had 
only  paid  the  principal  of  said  warrant,  and  refused  the 
payment  of  any  interest.  The  respondents  tiled  a  general 
demurrer  to  said  complaint,  assigning  that  the  same  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  Rr- 


1871.]      TERRITORY  EX  REL.  LAKOKY  TJ.  G-ILBERT.  37f> 

spondents  claim  that  the  complaint  is  radically  defective  for 
the  reason  that  it  does  not  show  that  on  the  said  warrant 
was  indorsed  "not  paid  for  want  of  funds  in  the  treasury." 
That  without  such  indorsement  said  warrant  does  not  bear 
interest.  The  statute  of  this  Territory  authorizing  the  pay- 
ment of  interest  on  county  warrants  is  as  follows  : 

u  That  all  county  warrants  heretofore  drawn  or  that  may 
hereafter  be  drawn  by  the  proper  authorities  of  any  county, 
shall,  after  having  been  presented  to  the  county  treasurers 
of  the  respective  counties  of  this  Territory,  and  by  them 
indorsed,  *  not  paid  for  want  of  funds  in  the  treasury,'  and 
from  and  after  said  date  of  presentment  and  indorsement 
shall  draw  interest  at  the  rate  of  ten  per  cent  per  annum." 

It  will  be  seen  that  the  duty  of  making  this  indorsement 
does  not  devolve  upon  the  owner  of  a  warrant  when  he  pre- 
sents the  same  for  payment,  but  upon  the  county  treasurer, 
to  whom  the  same  may  be  presented.  It  cannot  be  doubted 
but  that  it  is  the  right  of  the  owner  of  a  warrant  on  present- 
ing the  same  for  payment  to  have  indorsed  thereon,  "not 
paid  for  want  of  funds  in  the  treasury."  And  we  do  not 
ill  ink  there  is  much  doubt  but  that  from  the  date  on  which 
he  was  entitled  to  this  indorsement  he  was  entitled  to  all  the 
rights  that  indorsement  would  give  him.  The  owner  of  a 
county  warrant  upon  the  refusal  of  a  county  treasurer  to 
make  this  indorsement  would  be  entitled  in  a  court  of  equity 
to  a  writ  of  mandamus  to  compel  the  said  treasurer  to  make 
the  same,  and  it  would  seem  that  such  court  ought  to  com- 
mand the  treasurer  to  make  the  indorsement,  bearing  date  at 
the  time  the  owner  of  the  warrant  was  entitled  to  the  same, 
otherwise  this  writ  would  not  be  a  complete  remedy  for 
the  wrong  suffered.  It  always  is  the  object  of  a  court  to 
give  the  relief  to  which  a  party  is  entitled  at  the  time  his 
cause  of  action  accrued.  The  owner  of  a  warrant  would 
have  the  right  to  demand  of  a  treasurer  that  lie  should 
make  this  indorsement  bearing  date  at  the  time  he  should 
have  made  it.  An  owner  of  a  warrant  then  being  entitled 
to  interest  from  the  date  at  which  he  was  entitled  to  this 
md'»r^'vment.  the  question  presented  is,  should  this  defend- 


376          TERRITORY  EX  REL.  LARGEY  v.  GILBERT.  [Aug.  T. 

ant  be  compelled  to  make  payment  without  this  indorsement, 
"not  paid  for  want  of  funds  in  the  treasury,"  when  the 
evidence  is  in  his  possession  and  admitted  to  be  true  of  the 
time  when  the  right  of  the  owner  accrued.  The  respondent 
is  a  fiduciary  agent  of  the  county,  the  same  as  the  former 
treasurer,  Potter.  The  interest  on  these  warrants  is  due 
from  the  county.  As  between  the  owner  of  this  warrant 
and  the  county,  the  right  of  the  "owner  is  complete.  He  is 
in  nowise  in  default,  but  the  county  through  its  officer.  If 
then  the  right  is  complete  against  the  county,  can  this  officer 
refuse  to  perform  its  obligations  when  the  same  is  within  his 
power  ? 

This  is  an  equitable  proceeding,  and  the  maxims  in  equity 
applicable  apply.  It  is  a  maxim  of  this  jurisprudence  that 
equity  looks  upon  that  as  done  which  ought  to  have  been 
done.  Equity  will  thus  consider  where  a  party  has  a  right 
to  pray  that  the  act  be  done.  Story's  Eq.  Jur.,  §  64,  g.  In 
this  case,  then,  as  the  appellant  was  undoubtedly  entitled 
to  insist  upon  this  indorsement  on  his  warrant,  and  as  the 
same  was  not  done  through  any  negligence  of  his,  but 
through  that  of  another  agent  of  the  corporation  of  which 
this  respondent  is  an  agent,  this  court  will  consider  this  case 
as  though  this  warrant  had  been  properly  indorsed,  and 
hold  that  this  agent  must  be  compelled  to  perform  this  obli- 
gation of  his  principal.  As  to  the  objection  that  the  county 
by  law  was  to  be  liable  for  interest  only  from  the  date  of 
this  indorsement  and  upon  the  condition  that  it  was  made, 
we  have  to  say  that  if  we  must  in  this  action  look  upon  this 
indorsement  as  having  been  made  because  it  ought  to  have 
been  made,  the  condition  is  complied  with. 

We  have  treated  this  subject  thus  far  as  though  there  was 
no  doubt  but  that  it  was  the  duty  of  the  county  treasurers 
to  make  this  indorsement.  In  no  other  statute  than  the  one 
under  consideration,  is  this  duty  enjoined,  and  in  this  only 
by  implication,  if  at  all.  Certainly  the  title  of  the  act 
which  is  as  follows:  "An  act  authorizing  county  commis- 
sioners to  pay  interest  on  court  warrants,"  and  the  general 
scope  of  the  act  would  not  lead  us  to  suppose  that  it  intended 


1871.]      TERRITORY  EX  EEL.  LARGEY  v.  GILBERT.  377 

to  define  the  duty  of  county  treasurers  in  any  particular. 
Probably  the  legislature  intended  to  provide  in  some  othei 
act,  that  county  treasurers  should  make  this  indorsement 
when  a  warrant- holder  presented  the  same  for  payment 
This  would  seem  to  be  the  most  rational  view  of  this  sub- 
ject. If,  then,  it  was  not  the  duty  of  the  county  treasurer, 
by  law,  to  make  this  indorsement,  he  had  no  legal  right  to 
make  the  same,  and  a  warrant-holder  would  have  no  right 
to  demand  it  of  him.  Under  this  view,  then,  a  right  would 
be  given  to  warrant-holders,  upon  a  condition  they  would 
have  no  power  of  compelling  the  performance  of.  It  is  an 
ancient  maxim  that  the  law  will  not  compel  a  person  to  do 
that  he  cannot  perform.  When  an  estate  is  granted  to  a 
person  upon  a  condition  which  it  is  impossible  to  perform, 
the  condition  is  void,  and  the  estate  passes  without  the  con- 
dition. Broom's  Leg.  Max.  244.  So  with  any  other  right 
which  the  law  gives  upon  an  impossible  condition.  The 
condition  is  void  and  the  right  becomes  absolute.  Taking 
this  view,  the  right  of  the  relator  to  interest  is  complete 
without  the  indorsement. 

If  it  is  admitted  that  this  statute  does  prescribe  a  duty  of 
county  treasurers,  then  it  should  be  construed  in  pari 
materia^  with  every  other  statute  of  the  Territory  upon  the 
same  subject.  Section  8  of  the  statute  upon  county  treas- 
urers (see  Statutes  of  1865,  p.  518)  makes  it  the  duty  of 
county  treasurers  to  pay  county  orders  in  the  order  in  which 
they  are  presented.  The  only  provision  of  law  which  would 
make  it  the  duty  of  the  county  treasurers  to  make  any  record 
of  the  presentment  for  payment  of  county  warrants,  is  the 
provision  of  this  statute  providing  for  the  payment  of  inter- 
est. It  may  be  observed,  then,  that  one  of  the  objects  of 
this  law  was  to  provide  a  means  of  preserving  the  order 
of  presentment  of  warrants  for  payment.  There  is  nothing 
in  the  point  that  the  object  of  this  law  was  simply  to  require 
the  presentment  of  county  warrants  to  county  treasurers,  so 
that  this  indorsement  might  be  made,  in  order  that  they 
might  bear  interest.  The  very  indorsement  "not  paid  for 
want  of  funds"  required  to  be  made,  shows  that  the  Dresent- 
VOL.  I.— 48. 


378  CAMPBELL  t>.  METCALF.  [Aug.  T.; 

ment  required  was  for  payment.  The  view  of  this  statute 
we  have  now  taken,  if  it  does  define  duties  of  county  treas- 
urers, makes  it  consistent  with  a  reasonable  intention  on  the 
part  of  the  legislative  assembly.  To  say  that  the  object 
thereof  was  not  to  provide  for  an  indorsement  which  would 
show  that  the  warrant  had  been  presented  for  payment  at  a 
certain  time,  and  payment  refused  for  want  of  funds  in  the 
treasury,  but  simply  to  provide  an  arbitrary  condition,  and 
one  that  would  leave  no  utility  for  any  other  purpose,  in 
order  that  a  warrant  might  draw  interest,  would  be  incon- 
sistent with  any  reasonable  intention  on  the  part  of  said 
assembly. 

The  statute  of  1867,  defining  the  duties  of  county  treasu- 
rers, provides  also  for  this  very  thing  of  preserving  the 
order  of  presentment  of  warrants  for  payment ;  the  object 
of  the  former  act.  We  have,  then,  two  acts,  with  the  same 
object  in  view,  and  providing  different  means  of  accomplish- 
ing it.  Where  this  is  the  case,  we  hold  that  the  latter  takes 
the  place  of  the  former,  and  renders  it  unnecessary,  or,  in 
other  words,  repeals  it. 

For  these  reasons,  the  judgment  of  the  court  below  ie 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


CAMPBELL  et  al.,  respondents,  v.  METCALF  et  al.,  appellants. 

INJUNCTION  —  damages  for  lost  time.  In  an  action  to  recover  the  damages  caused 
by  the  wrongful  suing  out  of  an  injunction,  a  party  can  recover  the  value 
of  his  labor  for  the  time  he  was  compelled  to  remain  idle  by  being  restrained 
from  working  his  mining  ground. 

INJUNCTION  BOND  —  damages  not  recoverable  —  attorneys'  fees.  In  a  suit  upon 
an  injunction  bond,  the  expenses  and  fees  of  attorneys  in  the  action  in 
which  the  writ  was  issued  cannot  be  assessed  as  damages  sustained  by  the 
wrongful  granting  of  the  injunction. 

INJUNCTION  BOND  —  damages  —  assessment  and  apportionment  by  jury  —  attor- 
nfi/x'  fcr.t.  if  attorneys'  fees  are  paid  for  all  che  services  rendered  in  an 


1871.J  CAMPBELL  v.  METCALF.  379 

action,  including  those  performed  in  procuring  the  dissolution  of  an  injunc- 
tion, the  party  claiming  damages  must  prove  the  amount  of  the  fees  that 
was  so  paid  for  procuring  the  dissolution  of  the  injunction.  A  jury  cannot 
apportion  the  fees  paid  in  the  action  and  find  the  value  of  certain  services, 
without  evidence  of  the  same. 

PRACTICE  —  instructions  —  issues.  The  court  should  not  give  instructions  which 
will  cause  the  jury  to  consider  issues  on  which  no  evidence  has  been  in- 
troduced. 

Appeal  from  the  Third  District,  Meagher  County. 

THIS  action  was  tried  in  November,  1870,  before  SYMES, 
J.,  and  the  jury  returned  a  verdict  for  Campbell  and  other 
plaintiifs.  Metcalf  made  a  motion  for  a  new  trial,  which 
was  overruled  in  May,  1871,  by  WADE,  J.  The  facts  appear 
in  the  opinion. 

CHUMASEBO  &  CHAD  WICK,  for  appellants. 

There  was  no  evidence  showing  any  damages  beyond 
merely  nominal  damages.  Respondents  should  show  that 
they  had  tried  unsuccessfully  to  get  work.  They  must  show 
actual  damages  from  enforced  idleness.  There  was  no  evi- 
dence that  respondents'  mining  ground  was  worth  any  thing, 
or  would  pay  wages.  The  ground  could  not  be  worked  on 
account  of  drainage.  The  work  contemplated  by  respond- 
ents would  have  been  useless.  Respondents  have  sustained 
no  damage  on  account  of  loss  of  time. 

The  only  attorneys'  fees  that  can  be  recovered  are  those 
that  were  paid  solely  on  the  motion  to  dissolve  the  injunc- 
tion. The  only  evidence  shows  that  the  attorneys  were  paid 
for  their  services  in  the  whole  case.  The  injunction  was 
dissolved  as  a  matter  of  course  after  the  verdict.  The  jury 
could  not  render  a  verdict  for  any,  except  actual  damages. 

SIIOBER  &  LOWRY  and  W.  E.  CULLEN,  for  respondents. 

The  verdict  will  not  be  disturbed  if  there  is  some  evidence 
to  sustain  it.  Where  there  is  no  certain  measure  of  dam 
ages,  the  verdict  will  not  be  disturbed,  except  for  prejudice, 
passion  or  corruption  in  the  jury.  Hill,  on  New  Trials,  432, 
§  3  ;  Kimballv.Gearhart,  12  Cal.  48  ;  Baxter  v.  McKinlay, 
16  id.  76;  Burnett  v.  Whites  ides.  15  id.  35. 


380  CAMPBELL  v.  METCALF.  [Aug.  T., 

A  verdict  will  not  be  set  aside  because  the  jury  assessed 
higher  damages  than  the  court  would  have  given,  unless  the 
jury  were  actuated  by  improper  motives,  or  erroneously 
assessed  them.  Hill,  on  New  Trials,  434,  §  10 ;  436,  §  14. 
If  by  any  calculation,  which  the  evidence  will  reasonably 
support,  the  verdict  can  be  sustained  as  to  amount,  a  new 
trial  should  not  be  granted. 

Witnesses  testify  to  the  facts,  and  the  question  of  damages 
is  left  to  be  assessed  by  the  jury  under  a  given  state  of  facts. 
Sedgw.  on  Dam.  694. 

The  instructions  were  as  favorable  to  the  respondents  as 
the  law  would  warrant. 

KNOWLES,  J.  This  is  an  action  on  an  injunction  bond  foi 
damages  occasioned  by  the  wrongful  suing  out  of  an  injunc- 
tion. It  appears  from  the  record  that  one  David  P.  Ran- 
kin  had  brought  an  action  to  recover  the  possession  of  a  cer- 
tain mining  claim  against  respondents.  That  as  the  said 
mining  claim  was  valuable  only  for  the  precious  metals  there- 
in contained,  and  in  order  to  prevent  any  judgment  he  might 
obtain  from  being  valueless  he  had  procured  a  temporary 
injunction  pending  the  action  restraining  respondents  from 
working  said  claim.  The  action  was  decided  in  favor  of  re- 
spondents. They  allege  that  by  reason  of  this  injunction 
they  were  compelled  to  remain  idle  for  a  certain  time,  that 
they  were  damaged  by  reason  of  the  filling  up  of  their 
drain  and  shaft  during  the  time  they  were  restrained  from 
working  the  same,  and  that  they  were  compelled  to  pay 
$1,000  attorney  fees  to  procure  the  dissolution  of  said  in- 
junction, and  that  they  were  otherwise  put  to  expense  and 
trouble.  For  all  of  these  causes  they  allege  their  damages 
to  be  $5,000. 

It  appears  from  the  testimony  presented  in  the  record  that 
respondents  were  idle  about  sixty  days,  that  the  value  of  the 
work  of  all  three  was  $18  per  day.  This  would  amount  to 
$1,080.  It  does  not  appear  what  amount  of  damages  respond- 
ents sustained  by  reason  of  filling  up  their  drain  and  shaft.  It 
appears  that  $1,000  was  paid  by  respondents  for  attorneys' 


1871.]  CAMPBELL  v.  METCALF.  381 

fees  in  the  action  which  involved  the  title  to  the  mining 
i?laim,  l/ut  it  does  not  appear  what  portion  of  this  $1,000 
was  paid  for  procuring  the  dissolution  of  the  injunction. 
It  appears  they  spent  $100  in  going  to  Helena  to  procure 
counsel  in  this  action  about  the  title  to  the  mining  claim, 
but  what  proportion,  if  any,  was  spent  in  procuring  counsel 
to  dissolve  the  injunction  is  not  shown.  The  jury  returned 
a  verdict  for  $1,250  damages,  and  judgment  was  entered 
against  appellant  for  this  amount. 

The  attorney  fees  and  expenses  in  the  action  between 
respondents  and  Rankin  in  determining  the  title  to  mining 
ground  were  not  properly  chargeable  as  damages  for  the 
dissolution  of  the  injunction.  If  any  portion  of  these  at- 
torney fees  and  expenses  were  paid  for  that  purpose,  it  de- 
volved upon  the  respondents  to  show  what  portion.  As  they 
failed  to  do  this  the  jury  were  not  warranted  in  finding  any 
damages  on  account  of  them.  The  verdict  of  the  jury  is 
<:1  early  erroneous  then  to  the  extent  of  $170. 

It  does  not  appear  to  us  that  the  jury  were  at  all  to  blame 
lor  this  verdict,  but  the  court.  The  instructions  of  the  court 
are  such  that  without  much  doubt  the  jury  were  misled 
upon  this  matter.  The  following  are  among  the  instructions 
•.riven  by  the  court : 

The  latter  portion  of  the  first  instruction  reads  thus  :  "In 
'•stimating  such  damages  you  are  to  take  into  consideration 
a  reasonable  attorneys'  fee  in  procuring  the  dissolution  of 
-aid  injunction." 

The  fifth:  " Reasonable  counsel  fees  and  other  expenses 
necessarily  incurred  in  the  defense  of  the  injunction  suit  are 
recoverable  as  damages  in  an  action  on  the  injunction  bond." 

Second  instruction  asked  by  appellants  : 

"That  the  only  attorneys'  fees  that  can  in  a  case  of  this 
kind  be  recovered  as  damages  are  those  which  are  confined 
to  the  motion  to  dissolve  the  injunction  and  cannot  include 
those  for  the  trial  of  the  question  of  title  to  the  property  on 
the  merits  of  the  action." 

This  portion  of  the  instruction  was  given  and  the  following 
refused  : 


382  CAMPBELL  v.  METOALF.  [Aug.  T.v 

"And  unless  the  jury  can  separate  the  two  branches  from 
the  evidence  they  will  not  be  justified  in  rendering  any  ver- 
dict for  damages  on  account  of  attorneys'  fees." 

Third  instruction  asked  by  appellants  and  refused  by  the 
court : 

"If  the  contract  relative  to  attorneys'  fees  was  to  pay  a 
sum  certain  for  the  whole  case,  including  the  trial  of  the 
merits,  the  motion  to  dissolve  the  injunction  and  in  all  courts, 
to  which  the  case  might  be  appealed,  the  jury  cannot  sepa- 
rate the  different  species  of  service  to  be  rendered  and  assess 
damages  upon  a  portion  of  the  same." 

Fifth  instruction  asked  by  appellants  and  given  : 

"  The  jury  in  estimating  damages,  if  they  think  from  the 
evidence  that  any  have  been  sustained  by  plaintiffs  on  ac- 
count of  attorneys'  fees,  can  only  take  into  consideration 
such  as  were  necessarily  incurred  in  procuring  the  dissolu- 
tion of  the  injunction  and  do  not  include  attorneys'  fees  for 
the  trial  of  the  merits  of  the  action  or  any  subsequent  pro- 
ceedings, nor  can  the  plaintiffs  recover  for  any  more  attor- 
neys than  were  actually  necessary  to  procure  the  dissolution 
of  the  injunction." 

Taking  these  instructions  altogether  and  considering  the 
fact  that  there  does  not  appear  in  the  record  one  scintilla  of 
evidence  that  shows  or  seeks  to  show  what  proportion  of 
the  $1,000  attorneys'  fees  or  of  the  $100  expenses  were  prop- 
erly charges  as  damages  for  the  dissolution  of  the  injunc- 
tion, and  the  inevitable  conclusion  is  forced  upon  us  that  the 
court  left  to  the  jury,  as  though  they  were  a  committee  of 
experts,  the  novel  task  of  determining  without  evidence  or 
guides,  but  their  own  experience  and  judgments,  what  por- 
tion of  this  $1,000  attorney  fees  and  $100  expenses  should 
be  apportioned  as  legitimate  damages  in  procuring  the  dis- 
solution of  this  injunction.  This  was  a  duty  that  might 
well  perplex  and  confound  the  most  astute  expert  in  such 
matters.  Surely  it  was  not  the  proper  province  of  any  jury 
to  determine  such  a  matter.  As  there  was  no  evidence  to 
show  how  much  money  had  been  paid  to  procure  the  disso- 
lution of  this  injunction  it  was  improper  for  the  court  to 


1871.]  McFABLAND  V.  CUTTER.  H83 

give  any  instructions  which  would  lead  the  jury  to  consider 
the  matter.  It  was  certainly  error  in  the  court  to  refuse,  as 
it  did  in  the  latter  portion  of  instruction  second  and  in  in- 
struction third  asked  by  appellants,  to  instruct  the  jury 
that  if  the  evidence  did  not  show  what  proportion  of  these 
attorney  fees  and  expenses  were  properly  chargeable  as 
damages  for  the  procuring  of  the  dissolution  of  the  injunc- 
tion, they  could  not  find  any  damages  for  this  cause. 

It  does  not  appear  but  that  the  $1,080  were  proper  dam- 
ages in  this  case. 

The  judgment  of  this  court  is  therefore  that  the  ordei 
overruling  a  motion  for  a  new  trial  be  reversed  and  the  judg 
ment  of  the  court  below  set  aside,  unless  respondents  shall 
remit  $170  of  their  judgment  and  pay  the  costs  of  this  ac- 
tion since  the  rendition  of  the  verdict  by  the  jury. 

Judgment  affirmed  in  part  and  reversed  in  part. 


MoFARLAND,  respondent,  n.  CUTTER  et  al.,  appellants. 

PRACTICE — judgment  if  demurrer  ia  illegally  filed.  A  party  who  withdraws  his 
demurrer  to  a  verified  complaint,  and  obtains  leave  to  file  an  answer  there- 
to at  a  certain  time,  cannot  then  file  another  demurrer;  but  if  another  de- 
murrer is  filed,  the  court  may  disregard  it  and  enter  judgment  for  the  want 
of  an  answer. 

PROMISSORY  NOTE  — suit  is  a  demand.  A  promissory  note  which  is  payable  "  on 
demand,"  requires  no  other  or  previous  demand  than  the  commencement 
of  a  suit  thereon. 

I'LEADIXG  —  complaint  —  allegation  of —  account  stated.  A  complaint  contains  a 
sufficient  allegation  of  an  account  stated,  which  sets  forth  that  the  parties 
accounted  together  on  a  certain  day  of,  and  concerning  certain  work  and 
labor,  the  wages  due  therefor  and  the  amounts  paid  thereon,  and  that  it  was 
found  and  ascertained  that  there  was  due  the  plaintiff  a  certain  sum  which 
the  defendants  then  and  there  agreed  to  pay. 

PRACTICE — findings  —  no  exceptions  to  interest.  This  court  will  not  review  the 
computation  of  interest  in  the  judgment,  if  no  exception*  were  properly 
taken  to  the  findings  of  the  court  below. 


384  MCFARLAND  v.  CUTTER.  [Aug.  T., 

Appealfrom  the  Third  District,  Lewis  and  Clarice  County. 

IN  March,  1871,  the  court,  WARREN,  J.,  rendered  judg- 
ment in  favor  of  McFariand.  The  promissory  note,  set 
forth  in  the  complaint,  was  as  follows : 

"FoRT  SHAW,  M.  T.,  May  14, 1870. 
"  On  demand,  we  promise  to  pay  Joseph  J.  McFariand, 
live  hundred  and  fifty  dollars  for  value  received  ($550). 

"CUTTER  &  TAYLOR." 

I  Stamp.] 

The  other  facts  appear  in  the  opinion. 

E.  W.  &  J.  K.  To  OLE,  for  appellants. 

The  court  erred  in  rendering  judgment  while  the  demurrer 
was  on  file  and  not  disposed  of. 

No  interest  could  be  recovered  on  the  note  sued  on.  If 
the  writ  was  a  demand,  interest  could  only  be  recovered 
from  the  date  of  the  commencement  of  the  suit. 

CHUMASERO  &  CHADWICK,  for  respondent. 

The  first  demurrer  was  confessedly  bad.  The  second 
demurrer  was  frivolous,  and  should  have  been  treated  as  a 
nullity.  The  court  properly  entered  judgment  for  respond- 
ent, Manning  v.  Tyler,  21  N.  Y.  569. 

On  appeal  from  a  judgment  on  a  frivolous  demurrer,  the 
judgment  will  not  be  reversed  unless  the  court  is  of  the 
opinion  that  the  demurrer  should  be  sustained.  Voorhies' 
Code,  365,  g,  h. 

No  demand  was  necessary  on  the  note  before  suit.  Story 
on  Prom.  Notes,  §  29 ;  Zeil  v.  Dukes,  12  Cal.  482 ;  Bell  v 
Sackett,  38  id.  409  ;  Byles  on  Bills,  499. 

Where  the  complaint  is  verified,  and  defendant  fails  to 
answer,  the  plaintiff  is  entitled  to  judgment  for  the  amount 
claimed  without  proof.  Tuolumne  R.  Co.  v.  Patterson,  18 
Cal.  415. 

Interest  is  recoverable  from  the  date  of  the  note.  Acts 
1865,  535,  §  2.  Any  error  in  computing  interest  should 


1871.]  MoFARLAND  V.  C UTTER.  386 

have  been  corrected  in  the  court  below.     Whitney  v.  Buck> 
man,  13  Cal.  536. 

MURPHY,  J.  This  action  is  brought  to  recover  the  prin- 
cipal and  interest  on  a  promissory  note,  executed  by  defend- 
ants on  the  14th  of  May,  1870,  for  §550,  and  payable  to 
plaintiff  "on  demand;"  and  also  to  recover  a  balance  of 
$378  in  favor  of  plaintiff,  on  an  account  stated  between 
plaintiff  and  defendants  on  the  28th  of  December,  1870. 

In  the  court  below  the  defendants  tiled  a  demurrer  to  the 
complaint,  which,  on  their  own  motion,  was  afterward  with- 
drawn, and  leave  given  to  tile  an  answer  by  a  certain  day. 

On  the  day  tixed,  instead  of  an  answer,  defendants  tiled  a 
second  demurrer  to  the  complaint,  on  the  grounds,  first, 
that  the  complaint  alleges  no  demand  of  the  note ;  and, 
second,  that  it  does  not  state  whether  or  not  the  account  is 
an  account  stated. 

This  last  demurrer  seems  to  have  been  entirely  disre- 
garded by  the  court,  the  record  disclosing  no  action  on  it 
whatever  ;  and  on  the  24th  of  March,  1871,  on  motion  of 
plaintiff,  the  court  proceeded  to  enter  up  judgment  against 
the  defendants,  and  in  favor  of  the  plaintiff,  for  the  sum  of 
$985.15,  being  the  full  face  of  the  note,  with  interest  from 
the  date  thereof,  and  the  full  amount  of  the  account  stated, 
with  interest  from  date  of  statement,  and  also  for  the  costs 
and  disbursements  of  plaintiff  in  the  suit,  amounting  to 
$126.45. 

From  this  judgment  the  defendants  have  appealed  to  this 
court. 

It  is  insisted  here  by  appellants  that  the  court  below  erred 
in  rendering  judgment,  while  their  demurrer  was  on  file, 
without  first  disposing  of  it. 

The  court,  in  permitting  the  first  demurrer  to  be  with- 
drawn, in  its  discretion  only,  granted  leave  to  defendants  to 
file  an  answer ;  but  instead  of  filing  an  answer,  in  compli- 
ance with  the  order  of  the  court,  they  filed  anothtr  de- 
murrer, which,  to  say  the  least,  was  irregular,  and  might 
have  been  considered  a  contempt  of  court ;  and  the  court 
VOL.  L— 49. 


386  MCFARLAND  v.  CUTTER.  [Aug.  T., 

had  a  perfect  right,  in  the  further  proceedings  of  the  case, 
as  it  appears  to  have  done,  to  take  no  notice  of  it  whatever, 
and  treat  it  as  a  mere  nullity. 

And  if  the  court  had  chosen  to  regard  it  at  all  —  if,  in- 
deed, it  could  have  properly  done  so  —  the  demurrer  could 
not  have  been  sustained,  because  of  frivolous  character 
alone  if  for  no  other  reason.  As  to  the  first  ground  of 
demurrer,  the  note  being  payable  on  demand  admits  a 
present  debt  to  be  due  to  payee  or  holder,  is  payable  abso 
lutely  and  at  all  events,  and  requires  no  other  or  previous 
demand  than  the  institution  of  a  suit  thereon.  In  support 
of  this  position  see  Story  on  Prom.  Notes  (6th  ed.),  §  29, 
and  authorities  there  cited  ;  also  12  Gal.  482  ;  38  id.  409  ;  3 
Wend.  13. 

And,  as  to  the  second  ground,  the  complaint  alleged 
indebtedness  for  certain  work  and  labor  performed  by  the 
plaintiff  for  defendants,  at  their  instance  and  request,  for  a 
certain  period  of  time,  and  at  certain  stipulated  wages,  and 
then  goes  on  to  say  "  that,  on  the  28th  day  of  December, 
A.  I).  1870,  this  plaintiif  and  the  said  defendants  accounted 
together  of  and  concerning  the  said  work  and  labor,  and 
the  wages  due  therefor,  and  the  amounts  paid  on  account 
thereof  by  the  said  defendants  to  this  said  plaintiff ;  and  it 
was  found  and  ascertained  that  there  was  due  the  plaintiff 
from  said  defendants  the  said  sum  of  $378,  which  said  sum 
the  said  defendants  then  and  there  agreed  to  pay,"  etc. 

We  hold  this  to  be  a  very  clear  and  amply  sufficient  alle- 
gation of  an  account  stated,  and  must  consider  the  demurrer 
in  that  regard,  as  in  the  other,  simply  frivolous  and  evi- 
dently filed  for  delay,  and  not  such  as  to  warrant  a  reversal 
of  judgment. 

But  it  is  further  insisted  by  appellants  that  the  court 
below  erred  in  the  computation  of  interest  on  the  note.  The 
record  shows  no  exception  whatever  to  the  findings  of  that 
court  in  this  particular,  and  this  court  can.  therefore,  con- 
sider none  here. 

Appellants  should  have  availed  themselves  of  the  proper 
n^  in  the  court  below,  if  they  desired  to  take  ad- 


1871.]  OKR  0.  HARDING.  387 

vantage  of  any  erroneous  computation  in  the  court  above. 
This  court  will  only  review  and  correct  such  errors  of  the 
court  below  as  the  record  discloses  were  properly  excepted 
to  there. 

Tiie  defendants  failing  to  answer,  arid  the  complaint  being 
properly  veritied,  the  plaintiff  was  entitled  to  a  judgment 

upon  the  complaint  without  proof. 

Judgment  affirmed. 


OBR,  appellant,  v.  HARDING  et  al.,  respondents. 

PRACTICE  —  dismissal  of  appeal  —  motion  to  re-instate.  An  appeal  that  has  been 
dismissed  will  not  be  re- instated  on  the  motion  of  appellant,  supported  by 
his  affidavit,  showing  that  his  neglect  to  perfect  the  appeal  was  caused  by 
the  verbal  statements  or  agreement  of  the  respondents. 

Appeal  from  the  Tfiird  District,  MeagTier  County. 
THE  facts  are  stated  in  the  opinion. 

S.  ORE,  pro  se. 

CHUMASERO  &  CHADWICK,  for  respondents. 

MUKPHY,  J.  This  is  an  appeal  from  a  judgment  in  favor 
of  defendants,  in  the  third  district  court,  Meagher  county, 
at  its  May  term,  1869. 

The  transcript  was  tiled  in  this  court  on  the  4th  of  June, 
1870,  and  at  the  August  term  thereafter,  a  diminution  of  the 
record  was  suggested,  and  the  case  continued  at  the  cost  of 
the  appellant. 

The  perfected  record,  however,  was  not  filed  till  the  third 
instant,  about  twelve  months  afterward. 

But.  at  the  last  January  term  of  this  court,  the  appeal 
was  on  motion  dismissed,  with  leave  to  re-instate  npon 
shown. 


388  MCDONALD  v.  STOKEY.  [Aug.  T^ 

And  the  case  is  now  before  us  on  motion  of  appellant  to 
re-instate,  supported  by  his  own  affidavit,  that  "he  was 
prevented  from  having  the  record  perfected,  by  one  of  the 
defendants  (Harding)  asking  him  to  hold  on  and  not  send 
the  record  until  he  (Harding)  would  see  him  (affiant)  again 
with  a  view  to  compromise,"  and  was,  therefore,  taken  by 
surprise  by  the  action  of  the  court  in  dismissing  the  appeal. 

Does  this  show  such  proper  and  sufficient  cause  as  to 
warrant  this  court  in  sustaining  the  motion  and  re-instating 
the  cause  on  the  calendar  \ 

We  think  not.  This  court  cannot  look  to  and  be  governed 
by  such  mere  verbal  outside  requests,  statements,  under- 
standings or  agreements,  between  either  parties  or  attorneys 
in  a  case  not  reduced  to  writing,  raising  no  legal  obligation, 
and  of  no  binding  effect  upon  the  parties  thereto. 

Besides,  the  term  at  which  the  appeal  was  dismissed  was 
permitted  entirely  to  pass,  without  any  steps  whatever  being 
taken  to  have  the  case  restored,  in  compliance  with  rule 
second  of  the  rules  governing  the  practice  in  this  court. 

The  motion  to  re-instate  is  overruled. 

Motion  to  re-instate  denied. 


MCDONALD,  respondent,  «.  STOKEY,  appellant. 

BANK  CHECK  —  indorsement  of —  bill  of  exchange  —  days  of  grace  —  protest.    An 
instrument  in  these  words 

"No.  4,  HELENA,  M.  T.,  May  15, 1871. 
[Stamp.] 

"  Fox  &  LYSTEB,  Bankers : 

"  Pay  to  Thomas  Cotsworth,  or  bearer,  twenty  dollars. 

41  CHARLES  HENDBIB.' 
Indorsed:  "GEORGE  STOKEY." 

is  not  a  bill  of  exchange,  but  a  "  check  for  funds  deposited  in  bank,"  and  i§ 
not  entitled,  under  the  laws  of  this  Territory,  to  any  days  of  grace,  and  tha 
indorser  is  liable  without  any  notice  of  its  non-payment. 


1871.]  MCDONALD  v.  STOKEY.  389 

BANK  CHECK—  charactei-istics  of.  A.  bank  check  is  always  drawn  on  a  bank 
or  banker,  and  is  an  absolute  appropriation  of  a  certain  sum  in  the  hands 
of  the  banker ;  it  is  payable  immediately  on  presentation  on  the  day  desig- 
nated, and  presented  only  for  payment,  and  is  not  allowed  any  days  of  grace. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THIS  action  was  tried  in  August,  1871,  and  judgment  was 
entered  for  McDonald,  by  WADE,  J.,  on  the  verdict.  The 
facts  appear  in  the  opinion. 

CULLEN  &  COMLY,  for  appellant. 

The  terms,  "  bills  of  exchange  "  and  "  promissory  notes," 
include  every  species  of  commercial  paper.  Harker  v.  An- 
derson, 21  Wend.  373 ;  Byles  on  Bills,  26. 

The  legislature  intended  that  all  the  rules  of  commercial 
paper,  except  that  relating  to  days  of  grace,  should  apply  to 
the  checks  sued  on.  Acts  1865, 343 ;  Broom' s  Leg.  Max.  638. 

Modern  decisions  place  checks  on  the  same  basis  as  bills 
of  exchange,  and  the  same  diligence  and  character  of  notice 
are  required  to  charge  an  indorser  upon  a  check  and  bill  of 
exchange.  Minturn  v.  Fisher,  4  Cal.  35  ;  Merchants'  Bank 
v.  Spicer,  6  Wend.  445 ;  Smith  v.  Jones,  20  id.  194 ;  Suiter 
v.  Burt,  id.  205 ;  Harker  v.  Anderson,  21  id.  373 ;  Sher- 
man v.  Comstock,  2  McLean,  19  ;  Story  on  Prom.  Notes, 
§  495. 

The  appellant  was  not  liable  upon  the  checks  until  he  had 
been  served  with  notice  of  its  presentation,  demand  and 
non-payment,  as  required  for  bills  of  exchange.  Acts 
1865,  343. 

This  act  is  in  part  materi  with  the  section  applicable 
to  persons  holding  over  lands,  tenements,  etc.  (Acts  1866, 
174,  §  658),  in  which  case  a  notice  in  writing  is  material. 
Livingston  v.  Turner,  14  N.  Y.  64. 

SIIOBER  &  LOWRY,  for  respondent. 

The  checks  sued  on  are  expressly  excepted  from  the  pro- 
visions of  the  statute  relating  to  bills  of  exchange.  Acts 
1865,  343,  §2. 


$0  MCDONALD  0.  STOKEY.  [Aug.  T., 

Checks  are  not  entitled  to  days  of  grace.  Byles  on  Bills, 
285  ;  Story  on  Prom.  Notes,  673-675. 

An  order  on  a  bank  to  pay  on  a  future  day  is  a  check, 
and  is  not  entitled  to  grace.  Byles  on  Bills,  86  (n.);  3  Kent's 
Com.  104 ;  Taylor  v.  Wilson,  11  Mete.  52. 

The  object  of  the  law  is  to  give  the  indorser  notice,  and  it 
is  immaterial  whether  it  is  written  or  verbal,  if  it  is  given  by 
the  holder  at  the  proper  time.  Story  on  Prom.  Notes, 
£  315. 

Demand  of  payment  of  a  check  must  be  made  with 
reasonable  diligence,  according  to  the  circumstances  of  the 
case.  Moliawk  Bank  v.  Broderick,  13  Wend.  133.  Due 
diligence  was  used  in  this  case  by  respondent.  The  checks 
were  presented  at  the  bank  on  the  day  they  were  payable, 
and  the  appellant  was  notified  of  their  non-payment.  This 
action  was  properly  brought  after  the  checks  had  been  pre- 
sented and  payment  refused,  and  the  appellant  had  had 
notice  thereof  without  delay. 

MURPHY,  J.  This  suit  was  brought  to  recover  the  sum 
of  $191,  with  interest  and  costs,  upon  three  certain  instru- 
ments of  writing,  sued  on  as  bank  checks,  drawn  by  one 
Charles  Hendrie  on  the  15th  of  May,  1871,  on  the  banking 
house  of  Fox  &  Lyster,  Helena,  numbered  4,  6  and  13,  and 
for  the  sums  of  $21.90,  $23.70  and  $145.50,  respectively, 
and  indorsed  by  defendant,  Stokey,  to  plaintiff,  McDonald, 
for  a  valuable  consideration. 

The  cause  was  tried  by  a  jury  below,  and  a  verdict  and 
judgment  for  plaintiff,  for  full  amount  of  checks,  with 
interest,  and  costs  and  disbursements  of  plaintiff.  From 
which  judgment  defendant  appeals  to  this  court. 

It  seems  that  the  only  question  necessary  for  us  to  con- 
sider here  is,  whether  or  not  these  checks  are  in  effect  "bills 
of  exchange,"  and  come  within  the  purview  of  the  legisla- 
tive act  of  December  31,  1864,  concerning  bills  of  exchange 
and  promissory  notes,  section  6  of  which  requires  the  holder, 
i'i  order  to  make  the  contingent  liability  of  any  indorser  of 
any  bill  of  exchange  or  promissory  note  absolute,  to  cause 


1871.]  MCDONALD  ».  STOKEY.  391 

it  to  be  presented  at  the  place  where,  by  its  terms,  it  is  pay- 
able, if  any  place  is  specified  therein,  otherwise  to  the  per- 
son who  is  primarily  liable,  for  payment,  and  if  payment 
on  such  presentation  at  maturity  be  neglected  or  refused,  to 
cause  a  written  or  printed,  or  partly  written  and  partly 
printed,  notice  of  such  presentation,  demand  and  non-pay- 
ment, briefly  describing  the  bill  or  note,  to  be  served  imme- 
diately thereafter  upon  the  indorser,  unless  the  same  shall 
be  protested  in  the  usual  manner  by  a  notary  public. 

By  section  2  of  said  act,  it  is  provided  that  "three  days 
of  grace  shall  be  deemed  and  taken  to  apply  to  all  bills 
of  exchange  and  promissory  notes  maturing  within  the 
Territory.''  But  in  the  same  section  it  also  declares  that 
"this  provision  shall  not  extend  to  drafts  payable  at  sight, 
nor  to  checks  for  funds  deposited  in  bank,  or  elsewhere, 
subject  to  draft  at  sight." 

Now  if  these  instruments  are  in  fact  "  bills  of  exchange," 
or  can  be  properly  so  considered,  within  the  meaning  of  the 
act  referred  to,  they  must  be  governed  by  the  same  rules  as 
to  notice,  etc.,  and  are  entitled  under  the  statute  to  three 
days  of  grace,  and  the  indorser,  before  he  can  be  held 
liable,  to  due  notice,  either  in  printing  or  writing,  or  in  both, 
of  presentation,  demand  and  non-payment,  or  to  notice  by 
moans  of  protest. 

Otherwise,  they  can  be  treated  only  as  "checks  for  funds 
deposited  in  bank,"  and  by  the  terms  of  the  statute,  enti- 
tled to  no  days  of  grace,  and  the  indorser  to  no  notice. 

But  are  they  in  fact,  as  in  case  of  "bills  of  exchange," 
within  the  meaning  of  the  statute  \  And  did  the  legisla- 
ture intend  to  subject  the  holder  of  such  instruments  to  the 
vexation  and  delay,  not  to  say  injury,  that  might  occur,  if, 
in  order  to  hold  an  indorser  responsible,  he  were  compelled 
to  resort  to  the  formality  of  serving  a  written  or  printed 
notice  or  procuring  a  regular  protest  at  the  hands  of  a  no- 
tary public  ? 

As  contradistinguished  from  bills  of  exchange,  the  dis- 
tinguishing characteristics  of  checks  are,  that  they  are  al- 
ways drawn  on  a  bank  or  banker,  are  payable  immediately 


392  MCDONALD  v.  STOKEY.  [Aug.  T., 

on  presentment,  are  not  allowed  any  days  of  grace,  and  are 
never  presented  for  mere  acceptance,  but  only  for  pay- 
ment. 

And  Chancellor  KENT,  in  his  learned  commentaries,  says 
that  a  check  is  an  acknowledgment  of  a  certain  sum  due, 
and  that  it  is  an  absolute  appropriation  of  so  much  money 
in  the  hands  of  the  drawer's  banker  to  the  holder. 

In  this  respect  a  check  materially  differs  from  a  bill  of 
exchange,  which  at  law  is  not  an  appropriation  of  the 
money  of  the  drawer  or  maker  until  its  acceptance,  which 
is  never  necessary  in  the  case  of  a  check. 

Now  these  instruments  are  each  drawn  on  Fox  &  Lys- 
ter,  bankers,  which  fact  of  being  drawn  upon  a  bank  or 
bankers,  is  the  principal  feature  that  distinguishes  checks 
from  bills  of  exchange,  and  the  main  characteristic  which 
serves  to  determine  whether  any  particular  instrument  of 
this  character  is  a  check  or  a  "bill  of  exchange."  They 
simply  require  these  bankers  to  pay  to  the  persons  therein 
named  the  sums  of  money  therein  specified,  respectively, 
not  on  a  future  or  different  day  from  their  date,  as  they 
might  have  done  by  being  post-dated,  but  from  their  very 
terms  evidently  intending  payment  to  be  made  on  the  same 
day  they  were  drawn,  or  immediately  on  demand,  without 
any  days  of  grace  whatever  and  without  the  delay  of  pre- 
sentation for  mere  acceptance. 

And  they  seem  on  their  face  to  unmistakably  import  a 
present  sum  due,  and  a  simple  appropriation  of  that  sum, 
from  the  funds  of  the  maker,  in  the  hands  of  his  banker,  to 
the  use  of  the  holder. 

Besides  they  seem  to  be  otherwise  and  in  all  respects  in 
the  usual  form  and  to  possess  all  the  necessary  character- 
istics of  ordinary  checks  upon  funds  supposed  to  be  on  de- 
posit in  bank  to  the  credit  of  the  drawer. 

This  whole  subject  is  elaborately  and  ably  discussed  in 
the  Matter  of  Brown,  2  Story,  502.  The  words  of  the 
instrument  sued  on  there  and  these  sued  on  here  are  pre- 
cisely alike,  except  only  as  to  names,  sums  and  times  of 
payment,  those  being  post-dated,  and  in  effect  payable  on 


1871.]  MCDONALD  v.  STOKEY.  393 

a  future  day,  and  these  payable  on  the  very  day  of  their  date, 
or  immediately  on  presentment. 

And  notwithstanding  the  fact  of  the  instruments  in  that 
case  being  payable  on  a  different  day  from  their  date,  yet 
the  court  held  that  they  were  nevertheless  checks  and  pay- 
able on  the  very  day  specified,  and  without  days  of  grace. 
And  in  support  of  that  decision  various  high  authorities  are 
cited.  See,  also,  11  Mete.  44. 

In  short,  there  can  be  no  doubt  that  it  is  the  usage  of 
banks,  and  the  understanding  of  the  parties  to  instruments 
of  this  character,  to  treat  them  as  checks  and  payable  im- 
mediately on  presentment,  on  the  very  day  of  their  date  or 
on  the  precise  day  designated.  And  being  the  constant 
habit  of  business  among  commercial  men,  it  has  become 
like  all  other  usages  of  merchants,  the  lex  et  norma,  by 
which  to  arrive  at  the  true  intent  of  the  parties  and  to  cor- 
rectly expound  the  contract. 

The  parties  have,  in  the  present  case,  used  the  common 
form  of  ordinary  bank  checks,  and  by  so  using  them  they 
impliedly  authorize  the  bank  to  treat  them  as  checks  and 
to  pay  them  as  checks,  payable  on  the  very  day  of  their  date, 
immediately  upon  presentment,  without  any  days  of  grace 
or  other  delay  whatever. 

We  hold,  therefore,  that  these  instruments  are  simply 
"checks  for  funds  deposited  in  bank,"  and  by  express  pro- 
vision of  the  statute,  consequently  entitled  to  no  grace,  and 
in  fact  not  included,  nor  by  the  legislature  so  intended  to  be 
included  within  the  meaning  of  that  other  provision  of  the 
act,  which,  in  order  to  hold  an  indorser  liable,  requires,  as 
to  bills  of  exchange  or  promissory  notes,  written  or  printed 
notice  of  formal  presentment,  demand  and  non-payment, 
or  notice  by  the  usual  process  of  regular  protest  by  a  notary 
public,  to  be  served  upon  the  indorser. 

The  judgment  is  affirmed. 

Judgment  affirmed 

Vol.  I.  — 50 


394  TERRITORY  or  MONTANA  v.  MoCLiN.     [Aug.  T., 


TERRITORY  OF  MONTANA,  respondent,  v.  MoCLiN,  appellant. 

EXCEPTIONS — allowance  of — statement.  Exceptions  will  be  considered  by  this 
court  if  there  is  a  statement  at  the  beginning  of  the  bill  that  the  exceptions 
were  taken  at  the  proper  time  and  allowed. 

CRIMINAL  LAW  —  evidence  —  conviction  on  confessions.  The  testimony  of  a  con- 
fession of  guilt  by  the  accused,  which  is  not  corroborated  by  any  other 
evidence,  is  insufficient  to  sustain  a  conviction. 

CRIMINAL  LAW  —  confessions  to  officers.  Confessions  of  guilt  by  the  accused 
cannot  be  admitted  in  evidence,  if  they  were  not  made  voluntarily ;  and 
such  confessions,  made  to  an  officer  having  the  accused  in  custody,  will  be 
rejected  if  they  were  made  after  the  officer  had  said  that  it  would  be  better 
for  him  to  confess  his  guilt. 

Appeal  from  the  First  District,  Gallatin  Gounty. 

McCLiN  was  tried  in  June,  1871,  by  a  jury,  who  returned 
a  verdict  of  guilty,  and  the  court,  MURPHY,  J.,  sentenced 
him.  The  other  facts  are  stated  in  the  opinion  of  the  court, 
the  remarks  of  MURPHY,  J.,  and  the  note  of  the  reporter. 

S.  WORD  and  PAGE  &  COLEMAN,  for  appellants. 

Appellant  was  convicted  upon  his  confession.  There  was 
no  other  evidence  of  guilt,  and  such  a  conviction  could  not 
be  had.  People  v.  Hennessey,  15  Wend.  148  ;  People  v. 
Badgley,  16  id.  53. 

Appellant's  confessions  were  not  voluntary,  and  should 
have  been  excluded.  1  Phil.  on.  Ev.  542,  543  ;  People  v. 
McMaTion,  15  N.  Y.  384 ;  People  v.  Wentz,  37  id.  303  ;  Har- 
tung  v.  People,  4  Park.  C.  C.  319. 

The  confessions  of  appellant  to  the  officer  having  him  in 
custody  were  inadmissible  after  officer  had  advised  him  to 
make  the  confessions.  1  Phil,  on  Ev.  542, 543,  557  ;  Regina 
v.  Warringham,  2  Lead.  Grim.  Gas.  167. 

Any  subsequent  confession  of  guilt  made  by  appellant 
was  inadmissible,  unless  it  appeared  that  the  inducements 
of  the  officer  and  owner  of  the  goods  taken  had  been  with- 
drawn and  their  influences  removed.  1  Phil,  on  Ev.  551- 
554.  The  court  erred  in  refusing  to  allow  the  officer,  Guy, 
to  answer  the  question  put  to  him  by  appellant. 


1871.]          TERRITORY  OF  MONTANA  e.  McCuN.  396 

The  instructions  of  the  court  were  erroneous.  See  author- 
ities already  cited. 

If  the  confessions  were  improperly  admitted,  the  judgment 
of  conviction  should  be  reversed.  Acquittal  v.  Crowell,  1 
Oal.  191 ;  Junis  v.  Steamer  Senator,  id.  459 ;  Grimes  v. 
Fall,  15  id.  63. 

H.  N.  BLAKE,  district  attorney,  first  district,  for  respondent. 

The  transcript  does  not  show  that  any  exceptions  were 
properly  taken  by  appellant  or  allowed.  They  must  be 
settled,  signed,  sealed  and  filed  as  allowed  by  law  in  civil 
rases.  Acts  1865,  244,  §  177. 

This  assertion  in  the  transcript  must  be  disregarded,  to 
wit:  "Now  comes  the  defendant  by  his  attorneys,  and 
tenders  the  following  bill  of  exceptions,  which  were  taken 
at  the  proper  time  and  allowed."  It  is  not  certified  to  be 
correct  by  the  judge  or  counsel. 

The  bill  of  exceptions  is  a  mere  statement  of  evidence. 
No  error  of  the  court  is  complained  of.  The  appellant  did 
not  except  to  the  action  of  the  court  at  the  trial.  This  court 
can  not  review  the  same.  '  People  v.  Thompson,  28  Gal.  218 ; 
Peopl'  v.  Martin,  32  id.  91  ;  People  v.  Dick,  id.  214 ; 
People  v.  Trim,  37  id.  275. 

The  appellant  was  not  injured  by  the  confession  specified 
in  the  first  exception,  as  it  was  excluded  from  the  jury  by 
the  court. 

The  question  put  to  the  officer,  Gruy,  about  soliciting 
appellant  to  confess,  was  "ruled  out  by  the  court."  No 
>bjection  was  made  to  the  same,  and  no  exception  was  taken 
t»  the  ruling  thereon. 

The  instructions  referred  to  in  the  bill  were  not  excepted 
to  by  anybody.  They  may  have  been  given  at  the  request 
of  the  appellant.  The  record  is  so  defective  in  this  respect 
that  they  cannot  be  reviewed. 

The  evidence  detailed  in  the  bill  was  "objected  to"  by 
appellant,  when  it  was  offered.  No  exception  was  taken  to 
its  admission,  and  there  is  nothing  for  the  court  to  review. 

The  failure  of  appellant  to  take  any  exception  to  the  above 


396  TERRITORY  OF  MONTANA  v.  McCLiN.    [Aug.  T. 

evidence  or  instructions  was  an  acquiescence  in  the  judg- 
ment of  the  court  and  a  waiver  of  any  right  to  appeal. 
People  v.  Wooster,  16  Cal.  435  ;  Turner  v.  Tuolumne  C.  W. 
Co.,  25  id.  398. 

The  ground  on  which  the  evidence  was  objected  to  is  not 
stated.  A  general  objection  is  insufficient.  People  v.  Rod- 
riguez,  10  Cal.  50  ;  People  v.  Frank,  28  id.  507. 

The  admission  of  the  evidence  was  discretionary  with  the 
court.  1  Greenl.  Ev.,  §  219  ;  People  v.  Jim  Ti,  32  Cal.  64. 

WADE,  C.  J.  This  case  comes  into  this  court  on  appeal 
from  the  judgment  and  bill  of  exceptions,  upon  the  sepa- 
rate trial  of  defendant,  James  F.  McClin,  indicted  jointly 
with  defendants,  Nathan  Ward,  David  Collier  and  John 
Maloney,  for  the  crime  of  burglary. 

It  is  contended  by  respondent  that  the  record  does  not 
disclose  the  fact  that  any  proper  exceptions  were  taken  at 
the  trial  to  the  rulings  of  the  court  upon  th«  introduction 
of  evidence,  or  to  the  charge  of  the  court  to  the  jury. 
This  is  an  appeal  from  the  judgment-roll,  and  the  bill  of 
exceptions  is  properly  before  the  court  for  consideration 
The  bill  of  exceptions  commences  as  follows  : 

"  Now  comes  the  defendant  by  his  attorneys  and  tenders 
the  following  bill  of  exceptions,  which  were  taken  at  the 
proper  time  and  allowed." 

We  think  these  words  form  a  part  of  the  bill  of  excep- 
tions, and  the  bill  being  signed  by  the  judge  as  correct,  we 
must  hold  that  to  any  ruling  of  the  court,  objected  to  at  the 
time,  as  disclosed  by  the  bill  of  exceptions,  proper  excep- 
tions were  taken  at  the  time  and  allowed.  This  is  the  plain 
import  and  meaning  of  the  language  employed. 

We  are  then  to  consider  the  case  as  disclosed  by  the  bill 
of  exceptions  and  the  record.  By  the  record  the  defendant 
was  convicted  upon  the  evidence  of  confessions  alone.  As 
shown  in  the  testimony  the  defendant  was  arrested  by  one 
John  Guy,  deputy  sheriff,  and  that  he  told  defendant  that 
it  would  be  better  for  him  to  confess  his  guilt.  There  ap- 
pears the  following  in  the  bill  of  exceptions : 


1871.]          TERRITORY  OF  MONTANA  «.  McCLiN.  397 

"  In  addition  to  the  above,  further  evidence  being  adduced 
that  a  mob  of  one  hundred  men  were  around  and  about  the 
jail  where  defendant  was  confined  at  intervals  of  nearly  all 
one  day  ;  that  threats  were  frequently  made  against  defend- 
ant that  if  he  did  not  confess  he  would  have  one  hundred 
lashes,  would  be  hung,  etc.  ;  that  word  was  brought  to  de- 
fendant that  one  person  confined  with  him  and  recently 
taken  out  by  the  mob  had  been  hung  ;  that  the  names  of 
defendant  and  others  confined  in  jail  and  the  addresses  of 
their  parents  and  friends  had  been  taken  down  by  John 
Guy,  deputy  sheriff,  in  writing,  with  their  knowledge,  that 
in  consequence  of  these  threats  and  demonstrations  defend- 
ant was  greatly  excited  and  alarmed  so  that  he  shed  tears  ; 
and  further,  no  evidence  being  produced  that  the  induce- 
ments held  out  by  the  said  deputy  sheriff,  John  Guy,  were 
at  any  time  withdrawn,  or  that  the  mind  of  the  defendant 
was  at  any  time  freed  from  the  apprehensions  occasioned  by 
said  violent  threats  and  demonstrations  ;  the  court  admitted 
as  evidence  confessions  of  guilt  made  by  defendant  to  said 
Guy  at  intervals  for  several  days  afterward.  Defendant's 
attorneys  objected  to  the  evidence  at  the  time  it  was  offered. 
The  foregoing  testimony  having  been  adduced,  the  defend- 
ant's attorneys  put  the  following  question  to  the  witness, 
Guy  :  '  Were  the  confessions  of  defendant  made  subsequent 
to  the  day  of  his  first  confession,  made  at  your  solicitation 
and  advice,  that  it  would  be  better  for  him  ? '  which  ques- 
tion was  ruled  out  by  the  court. 

"The  court  then  charged  the  jury  that  they  should  regard 
as  evidence  all  confessions  of  guilt  made  by  defendant  to 
said  Guy  after  the  day  of  the  first  confession." 

We  think  the  court  erred  in  refusing  to  permit  the  wit- 
ness, Guy,  to  answer  the  question  above  set  forth,  and  we 
are  of  opinion  that  a  conviction  upon  the  testimony  of  con- 
fessions alone  is  not  warranted  by  the  authorities. 

Whether  extra  judicial  confessions,  uncorroborated  by 
any  other  proof  of  the  corpus  delicti,  are  of  themselves  suf- 
tieient  to  found  a  conviction,  has  been  gravely  doubted.  In 
the  Roman  laws  such  naked  confessions  would  not  work 


898  TERRITORY  OF  MONTANA  t>.  MoCLiN.    [Aug.  T. 

out  a  conviction.  lu  each  of  the  English  cases  usually 
cited  in  favor  of  the  sufficiency  of  this  evidence  there  was 
some  corroborating  circumstances.  In  the  United  States 
the  prisoner's  confession,  when  the  corpus  delicti  is  not 
otherwise  proved,  has  been  held  insufficient  for  his  convic- 
tion ;  and  this  opinion  certainly  best  accords  with  the  hu- 
manity of  the  criminal  code,  and  with  the  great  degree  of 
caution  applied  in  receiving  and  weighing  the  evidence  of 
confessions  in  other  cases,  and  it  seems  countenanced  by 
approved  writers  on  this  branch  of  the  law.  1  Greenl.  Ev. 
246  ;  Phillips'  Ev.  542,  543  and  note ;  15  Wend.  148  ;  16 
id.  53. 

Before  any  confession  can  be  received  in  evidence  in  a 
criminal  case,  it  must  be  shown  that  it  was  voluntary.  The 
preliminary  examination  for  this  purpose  must  be  addressed 
to  the  judge.  "  A  free  and  voluntary  confession,"  said 
Chief  Justice  EYRE,  "  is  deserving  of  the  highest  credit 
because  it  is  presumed  to  flow  from  the  strongest  sense  of 
guilt,  and  therefore  it  is  admitted  as  proof  of  the  crime  to 
which  it  refers,  but  a  confession  forced  from  the  mind  by 
the  flattery  of  hope  or  by  the  torture  of  fear,  comes  in  so 
questionable  shape  when  it  is  to  be  considered  as  the  evi 
deuce  of  guilt,  that  no  credit  ought  to  be  given  to  it,  and 
therefore  it  is  rejected."  1  Leach's  Crim.  Gas.  299  ;  15  Wend. 
231 ;  Phillips'  Ev.  542 ;  15  jST.  Y.  384  ;  37  id.  303. 

In  regard  to  the  person  by  whom  the  inducements  were 
offered,  it  is  very  clear  that  if  they  were  offered  by  the 
prosecutor,  or  by  an  officer  having  the  prisoner  in  custody, 
or  by  a  magistrate,  or,  indeed,  by  any  one  having  authority 
over  him  or  over  the  prosecution  itself,  or  by  a  private  per- 
son in  the  presence  of  one  in  authority,  the  confession  wilJ 
not  be  deemed  voluntary  and  will  be  rejected.  1  Greenl. 
Ev.  253,  §  222. 

In  view  of  these  authorities  and  principles  which  seem  to 
be  well  settled,  we  think  the  court  erred  in  refusing  to  per- 
mit the  deputy  sheriff,  Gray,  to  answer  if  the  alleged  con- 
fession was  not  made  upon  his  solicitation  and  advice  to  the 
prisoner  that  it  would  be  better  for  him  to  confess. 


1871.]          TERRITORY  OF  MONTANA  «.  MoCLiN.  399 

Confessions  to  an  officer,  if  admitted  in  evidence  in  any 
jourt,  should  be  so  admitted  with  the  greatest  care  and  cau- 
tion, and  after  the  possibility  of  any  and  every  inducement 
has  been  removed,  and  the  authorities  seem  to  go  to  the 
extent  of  excluding  any  confession  made  to  an  officer  under 
any  circumstances.  There  may  be  some  doubt  as  to  this 
position,  but  certainly  there  is  no  doubt  where  the  officer 
makes  any  promises  or  threats  to  induce  a  confession. 

There  was  no  evidence  in  this  case,  except  the  bare,  naked 
confession  of  the  defendant,  as  shown  by  the  record,  and  it 
is  exceedingly  doubtful  if  a  conviction  could  be  worked  out 
upon  such  testimony  alone. 

The  verdict  and  judgment  of  the  court  below  is  set  aside 

and  a  new  trial  granted. 

Judgment  reversed. 

MURPHY,  J.,  concurred  in  the  foregoing  opinion  by  mak- 
ing the  following  remarks  : 

I  sign  this  opinion  upon  the  made  record  as  it  has  ap- 
peared, but  with  the  statement  that  the  bill  of  excep- 
tions was  signed  upon  agreement  between  the  district 
attorney  and  defendant's  counsel,  without  examination,  and 
is  both  incorrect  and  incomplete,  and  does  not  present  the 
case  at  all  as  it  was  tried  below. 


NOTE.  The  words  "  Now  comes  the  defendant  by  his  attorneys  and  tenders  the  fol- 
lowing bill  of  exceptions,  which  were  taken  at  the  proper  time  and  allowed,"  were 
wiitten  by  the  clerk  of  the  court  in  his  journal  at  the  time  he  copied  the  bill  of  ex- 
cept/Sons, after  the  court  had  adjourned  for  the  term.  The  district  attorney  and  coun- 
sel for  appellant  did  not  sign  any  bill  of  exceptions  that  contained  the  foregoing 
words.  The  journal  of  the  clerk  was  signed  by  MURPHY,  J.,  "without  examination." 

At  the  October  term,  1871,  McClin  was  again  convicted  and  received  the  same  sen- 
tence, five  yean  ID  the  territorial  penitentiary.— RKP. 


400  CBEIGHTON  •».  VANDEBLIP.  [Aug.  T., 

CBEIGHTON    et    al.,   appellants,   v.   VANDEBLIP    et    al., 

respondents. 

CONTRACT  TO  PAY  GOLD  DUST — promissory  note —  merger — agreement,  A.  con- 
tract for  the  payment  of  gold  dust,  in  the  uatui  e  of  a  promissory  note,  is  not 
merged  in  an  agreement,  by  which  the  time  for  its  payment  is  extended, 
the  rate  of  interest  reduced,  and  the  means  of  paying  it  placed  in  the  hands 
of  the  parties  liable  thereon ;  and  this  agreement  cannot  be  introduced  in 
evidence  under  the  allegations  of  the  answer  that  the  agreement  released 
the  parties  from  any  liability  to  pay  the  gold  dust. 

PROMISSORY  NOTE  —  merger.  A  promissory  note  is  not  merged  in  an  agreement 
which  does  not  expressly  defeat  a  right  of  action  thereon. 

AGREEMENT  CONSTRUED  —  situation  of  parties.  The  situation  of  the  parties  to 
an  agreement  can  be  considered  by  the  court  to  ascertain  the  meaning  of 
the  instrument. 

Appeal  from  the  First  District,  Madison  County. 

THIS  case  was  tried  by  a  jury,  in  November,  1870,  and 
verdict  rendered  for  defendants.    The  court,  WABREN,  J., 
overruled  the  motion  for  a  new  trial,  and  Oeighton  appealed. 
The  facts  appear  in  the  opinion. 

H.  N.  BLAKE,  for  appellants. 

The  agreement  betwen  appellants  and  respondents, 
Thomas  and  McRoberts,  is  not  a  defense  in  this  action.  If 
there  has  been  a  breach  of  the  agreement  a  suit  would  lie. 
2  Pars,  on  Notes  &  Bills,  530,  531,  536,  538 ;  Dow  v.  Tuttle, 
4  Mass.  414  ;  Shed  v.  Pierce,  17  id.  627;  Central  Bank  v. 
Willard,  17  Pick.  153  ;  Allen  v.  Kimball,  23  id.  473  ;  Bar- 
clay's  Mo.  Dig.  96,  §§  P8,  99. 

The  agreement  shows  that  the  note  was  not  merged  in  the 
same.  The  measure  of  damages  is  fixed.  The  evidence  relat- 
ing to  the  capacity  of  the  ditch,  and  quantity  and  value  of 
water  was  improperly  admitted.  (See  Agreement.)  The 
respondents  did  not  ask  for  special  damages  in  their  an- 
swer. The  court  erred  in  allowing  evidence  thereof  and 
refusing  to  give  instructions  prayed  for  by  appellants. 

W.  Y.  LOVELL,  W.  F.  SANDEBS  and  S.  WOBD,  for  re- 
spondents. 

Appellants  rely  on  part  of  the  agreement,  and  respondents 
are  entitled  to  the  whole.  2  Pars,  on  Cont.  499,  §  3. 


1871.]  CREIGHTON  v.  VANDERLIP.  401 

The  note  and  agreement  made  but  one  contract,  and  it 
must  be  enforced  as  such.  2  Pars,  on  Cont.  634, 536 ;  Miller 
v.  Stewart,  9  Wheat.  681. 

Appellants  must  show  that  they  were  without  laches 
before  they  can  sue  on  the  contract.  1  Chit.  PI.  324  ;  Slater 
v.  Emerson,  19  How.  224.  The  law  never  releases  a  party 
who  is  in  fault. 

The  note  was  merged  in  the  agreement,  which  says  its 
stipulations  are  a  "settlement  of  said  suit"  on  the  note  the 
first  time,  and  that  it  is  a  settlement  of  "all  matters  of  dis- 
pute or  difference  by  reason  of  said  note  being  unpaid." 
4  Kent's  Com.  111. 

The  agreement,  in  express  terms,  releases  respondents, 
Thomas  and  McRoberts,  from  any  liability  on  the  note,  and 
was  competent  evidence.  16  N.  Y.  635. 

It  was  the  province  of  the  jury,  not  the  court,  to  say  what 
the  actual  damages  were. 

The  case  is  here  on  the  judgment  roll  alone.  Civ.  Prac. 
Act,  §  322  ;  Kinna  v.  Horn,  ante,  363 ;  Simonton  v.  Kelly y 
ante,  329. 

WADE,  C.  J.  This  case  comes  into  this  court  upon  ap- 
peal from  an  order  ia  the  court  below,  overruling  a  motion 
for  a  new  trial. 

The  complaint  is  founded  upon  a  written  instrument,  of 
which  the  following  is  a  copy: 

"VIRGINIA  CITY,  M.  T.,  Nov.  5,  1867. 
"Six  months  after  date  we,  or  either  of  us,  promise  to 
pay  to  Norval  Harrison  and  Columbus  Hampton,  or  order, 
two  hundred  and  twenty-two  ounces  four  and  one-half 
pennyweights  of  clean  gulch  gold  dust,  or  its  value,  with 
interest  at  the  rate  of  five  per  cent  per  month  until  paid. 

"F.  D.  VANDERLIP, 
"\V.  H.  THOMAS, 
"JOHN  McROBERTS." 

The  complaint  avers,  that  for  a  valuable  consideration  on 
the  10th  day  of  March,  18C8,  this  note  or  contract  was  trans- 
VOL.  I.  — 51. 


402  CREIGHTON  v.  VANDBELIP.  [Aug.  T., 

ferred  by  Harrison  &  Hampton  to  plaintiffs,  and  that  plain- 
tiffs are  now  the  owners  thereof,  and  that  on  the  18th  day 
of  July,  1868,  the  plaintiffs  entered  into  an  agreement  with 
said  Thomas  and  McRoberts,  whereby  the  rate  of  interest 
to  be  paid  on  said  instrument  was  to  be  computed  at  the 
rate  of  five  per  cent  per  month  from  the  16th  day  of  March, 
1868,  to  the  18th  day  of  July,  1868,  and  at  the  rate  of  three 
per  cent  per  month  from  the  18th  day  of  July,  1868,  until 
the  same  should  be  paid.  That  no  part  of  the  principal  or 
interest  has  been  paid,  and  that  the  same  is  now  due  to 
plaintiffs. 

The  defendant  Vanderlip  does  not  answer.  The  separate 
answer  of  defendants,  McRoberts  and  Thomas,  admits  the 
execution  and  delivery  of  the  note  or  contract  described  in 
complaint,  the  assignment  thereof  to  plaintiffs  on  the  16th 
day  of  March,  1868,  and  the  agreement  as  to  the  rates  of 
interest  as  specified  in  said  complaint.  But  said  defendants, 
defending  against  the  cause  of  action  set  forth  in  the  com- 
plaint, aver,  that  on  the  18th  day  of  July,  1868,  at  Virginia 
City,  Montana  Territory,  said  plaintiffs,  under  the  firm 
name  and  style  of  P.  A.  Largey  (that  being  one  of  the  firm 
names  of  said  company),  entered  into  an  agreement  with 
said  defendants,  Thomas  and  McKoberts,  for  a  valuable 
consideration,  whereby  it  was  promised  and  agreed,  in  con- 
sideration of  the  covenants  and  promises  in  said  contract 
contained,  to  be  done  and  performed  by  said  defendants,  the 
said  plaintiffs  did  then  and  there  and  thereby  release  these 
defendants  from  any  and  all  liability  on  the  note  or  contract 
in  the  complaint  set  forth  and  described. 

The  agreement  whereby  these  defendants  claim  to  be 
released  and  discharged  from  the  obligations  of  the  note  or 
contract  upon  which  this  suit  is  instituted,  and  from  all 
liability  thereon,  is  in  the  words  and  figures  following, 
to  wit : 

"AGKEEMENT." 

"This  agreement,  made  and  entered  into  on  this  18th  day 
of  July,  A.  D.  1868,  by  and  between  Patrick  A.  Largey 


1871.]  CREIGHTON  v.  VANDEBLIP.  403 

of  the  first  part,  and  William  II.  Thomas  and  John  McRob- 

ers  of  the  second  part,  witnesseth : 

"WHEREAS,  the  said  Thomas  and  McRoberts  did,  on 
the  5th  day  of  November,  A.  D.  1867.  with  one  Fred- 
erick D.  Vanderlip.  make,  execute  and  deliver  to  Colum- 
bus Hampton  and  Norval  Harrison,  their  certain  prom- 
issory note,  whereby  they  promised  to  pay  and  did  obligate 
themselves  to  deliver  to  said  Hampton  and  Harrison,  for  a 
valuable  consideration,  the  amount  of  222  ounces  4£  penny- 
weights of  clean  gold  dust,  or  the  sum  of  $4,000  in  gold,  the 
value  of  said  gold  dust,  with  interest  from  date,  at  the  rate  of 
five  per  cent  per  month  until  paid,  and  payable  in  six  months 
from  date  of  said  note,  which  said  note  was  secured  by  said 
Vanderlip  by  a  certain  mortgage  duly  executed  and  re- 
corded; a  reference  for  a  full  and  perfect  description  of  the 
same  is  hereby  made  to  the  copy  of  the  same  hereto  attached 
and  made  part  of  this  agreement ;  and, 

"WHEREAS,  the  said  Columbus  Hampton  and  Norval 
Harrison  did,  for  a  valuable  consideration,  sell,  assign, 
transfer  and  set  over  said  note  and  mortgage,  for  a  valuable 
consideration,  on  the  16th  day  of  March,  A.  D.  1868,  to  E. 
Creighton  &  Co.;  and, 

"  WHEREAS,  the  said  Vanderlip,  Thomas  and  McRoberts 
have  failed  to  pay  said  note  ;  and, 

'•  WHEREAS,  the  said  P.  A.  Largey  has  commenced  suit  on 
the  same,  in  the  district  court  of  the  first  judicial  district, 
in  and  for  the  county  of  Madison  and  Territory  of  Montana, 
by  attachment ;  and, 

' '  WHEREAS,  the  said  writ  of  attachment  has  been  levied 
upon  certain  property  of  said  Thomas  and  McRoberts  ; 

Now,  therefore,  in  consideration  of  the  sum  of  $1  each 
to  the  other  paid,  by  the  parties  to  this  agreement,  and  the 
further  consideration  of  the  settlement  of  said  suit,  and  all 
matters  in  dispute  in  difference  by  and  between  the  said 
Largey,  Thomas  and  McRoberts.  by  reason  of  said  note 
being  unpaid,  it  is  agreed  : 

"1.  That  said  Largey.  his  heirs  or  assigns,  shall  dismiss 


404  CREIGHTON  v.  VANDERLIP.  [Aug.  T., 

his  said  action  in  the  district  court  now  pending,  and  release 
all  of  the  said  Thomas  and  McRoberts. 

' '  2.  That  the  said  Largey,  his  heirs  or  assigns,  agree  with 
the  said  Thomas  and  Me  Roberts,  that  the  only  interest  to  be 
computed  at  five  per  cent  per  month,  from  the  16th  day  of 
March,  A.  D.  1868,  until  the  18th  day  of  July,  1868;  and 
from  and  after  that  day  the  interest  to  be  computed,  and  it 
is  expressly  agreed  that  though  the  said  note  calls  for  five 
per  cent  interest  per  month,  the  same  shall  only  bear  interest 
and  be  computed  as  against  the  said  Thomas  and  McRoberts, 
at  the  rate  of  three  per  cent  per  month  until  paid;  and  that 
the  said  Largey  agrees  and  binds  himself,  his  heirs  and 
assigns,  to  forbear  suit,  to  prosecute  or  in  any  manner  to 
enforce  the  collection  of  said  note  or  interest  on  the  same, 
as  against  or  from  the  said  Thomas  and  McRoberts,  for  the 
space  of  one  year  from  the  said  date  of  July  18,  1868. 

"3.  It  is  further  agreed,  that  in  order  to  enable  the  said 
Thomas  and  McRoberts,  their  heirs  and  assigns,  to  pay 
said  note  and  interest  out  of  the  property  named  in  said 
mortgage,  to  wit :  the  ditch,  right  of  water  and  mining 
ground  therein  named,  that  the  said  Largey  agrees  and 
binds  himself  to  at  once  deliver  the  quiet  and  peaceable 
possession  of  all  the  property  named  in  said  mortgage 
to  the  said  Thomas  and  McRoberts  upon  the  following 
terms  and  conditions,  to  wit :  that  is  to  say,  that  said 
Thomas  and  McRoberts  shall  take  charge  of  all  of  said 
property,  use  and  work  the  same  to  the  best  advantage,  by 
the  sale  of  water  or  the  working  of  said  mining  ground, 
as  in  the  judgment  of  the  parties  hereto  may  seem  best  for 
the  interests  of  all  the  parties  hereto  ;  and  after  deducting 
all  necessary  expenses  and  charges,  shall  pay  all  moneys 
and  gold  dust  that  may  come  into  the  hands  of  said  Thomas 
and  McRoberts  from  said  property,  from  any  source  there- 
from unto  the  said  P.  A.  Largey,  his  heirs  or  assigns  ;  which 
money  or  gold  dust  so  paid  and  received  by  said  Largey 
shall  be  appropriated  and  applied  by  him  or  his  assigns,  in 
the  manner  following,  to  wit : 

"First,  to  the  payment  of  a  certain  promissory  note  or  to 


L87L]  CREIGHTON  v.  VANDEKLIP.  405 

any  sum  that  may  be  now  due  thereon,  or  the  interest  that 
may  be  due  or  to  become  due,  which  said  note  is  also  named 
and  set  out  in  said  mortgage  and  now  owned  by  said  P.  A. 
Largey.  calling  for  222  ounces,  4£  dwts.  of  clean  gold  dust, 
or  equal  to  $4,000  in  gold,  with  interest  from  date  until  paid 
at  five  per  cent  per  month,  and  dated  November  5,  1867, 
and  signed  by  F.  D.  Vanderlip  and  one  James  McEvily ; 
and  after  the  payment  of  said  note  and  interest,  as  afore- 
said, then  the  said  P.  A.  Largey  or  his  assigns  shall  apply 
all  money  or  gold  dust  as  paid  by  said  Thomas  and  Mc- 
Roberts from  said  property  named  in  said  mortgage,  after 
deducting  actual  expenses  of  said  Thomas  and  McRoberts 
as  aforesaid,  with  the  interest  to  be  computed  at  three  per 
cent  per  month,  as  named  in  said  note  from  said  18th  day 
of  July,  1868,  until  paid ;  and  that  when  said  several  notes 
with  the  interest  thereon  shall  have  been  paid  said  Largey 
or  his  assigns  as  aforesaid,  by  said  Thomas  and  Mc- 
Roberts, then  and  in  that  case,  it  is  agreed  and  the  right 
of  possession  and  occupancy  to  all  of  the  property  named 
in  said  mortgage  is  hereby  given  and  continued  in  and  to 
said  Thomas  and  McRoberts  or  their  assigns,  for  such  length 
of  time  as  may  be  necessary,  by  reasonable  use  and  work  of 
said  ditch  and  ground  as  aforesaid  until  the  said  Thomas 
and  McRoberts  shall  have  re-imbursed  and  paid  back  to  them- 
selves all  the  money  or  gold  dust,  with  interest,  at  said  rate 
that  they  may  have  paid  upon  said  note,  as  signed  by  said 
Vanderlip,  McRoberts  and  Thomas,  to  said  P.  A.  Largey  ; 
and  when  so  re-imbursed  and  paid  back  in  full,  then  they 
shall,  without  process  of  law,  return  and  deliver  the  prop- 
erty so  held  by  them  to  the  said  Largey  or  his  assigns. 

"  4.  It  is  further  agreed  and  understood  by  and  between 
the  said  parties  hereto,  that  in  the  event  that  said  ground 
and  the  rent  or  sale  of  water  from  said  ditch,  or  the  di- 
version of  the  water  from  such  ditch,  if  by  any,  or  from 
any  of,  said  causes,  the  said  Thomas  and  McRoberts 
are  prevented  from  paying  said  notes  last  named  and  the 
interest  thereon,  then  and  in  that  case,  after  reasonable  time 
and  fair  effort  by  said  Thomas  and  McRoberts,  then  and 
in  that  case  the  said  P.  A.  Largey  binds  himself,  his  heirs 


406  CJSEIGHTON  v.  VANDKRIAP.  [Aug.  T., 

and  assigns,  to  rebate  and  not  require  or  demand  any  inter- 
est whatever  of  the  said  Thomas  and  McRoberts,  but  that 
all  payments  that  may  have  been  made  by  them  shall  be 
deemed,  and  are  hereby  declared  to  be,  payments  of  the  debt 
and  principal  of  said  note. 

"5.  It  is  further  agreed  and  understood  that  to  the  enjoy- 
ment and  fulfillment  of  the  promises,  agreements  and  un 
dertakings,  as  herein  expressed,  that  said  P.  A.  Largey  or 
nis  assigns  agree  and  bind  themselves  that  they  will  place 
the  said  Thomas  and  McRoberts  in  the  quiet  possession  of 
all  the  property  herein  named,  and  that  he  will  maintain 
and  keep  good  said  possession  without,  and  free  of,  expense 
to  said  Thomas  and  McRoberts. 

"6.  It  is  further  agreed,  that  to  secure  the  payment  of 
said  last  mentioned  note  and  the  faithful  execution  of  this 
agreement,  that  the  said  Thomas  and  McRoberts  shall  cause 
to  be  made  and  executed  to  the  said  Largey  or  his  assigns 
a  mortgage  by  G.  W.  Allen  of  an  undivided  one-fourth 
interest  in  all  the  property  now  owned  by  the  Highland  and 
Pine  Grove  Fluming  Company,  of  Madison  county,  M.  T., 
and  of  three  hundred  feet  square  of  mining  ground  on  East 
Bummer  Dan  Hill,  in  Fairweather  district,  county  and  Ter- 
ritory aforesaid. 

•'7.  It  is  further  agreed  and  understood  by  and  between 
the  parties  hereto,  that  for  the  faithful  and  perfect  execution 
and  performance  of  each  and  every  agreement  and  under- 
taking as  herein  expressed,  we  do  bind  ourselves,  each  in 
the  penal  sum  to  the  other,  of  ten  thousand  dollars,  to  be 
well  and  truly  made. 

"  Witness  whereof  we  have  each  set  our  hands  and  seals, 
this  18th  day  of  July,  A.  D.  1868. 

"P.  A.  LARGEY,  [L.  s.] 

"W.  H.  THOMAS.          [L.  s.] 

"JOHN  MCROBERTS.  [L.  s.] 

"  Signed  in  our  presence, 

"  WM.  Y.  LOVELL, 

"G.  W.  ALLEN. 
"Done  in  duplicate." 


J87L]  CREIGHTON  c.  VANDEKLIP.  407 

To  the  introduction  of  this  agreement  in  evidence  by  the 
defendants,  the  plaintiffs  objected,  upon  the  ground  that  it 
is  no  defense  to  the  contract  for  gold  dust ;  that  it  does  not 
support  the  averments  of  the  answer,  and  that,  if  plaintiffs 
are  liable  thereon,  their  proper  remedy  is  a  suit  upon  the 
agreement.  These  objections  to  the  agreement  were  over- 
ruled, and  the  agreement  received  in  evidence.  This  action 
of  the  court  is  assigned  for  error,  and  the  main  question 
presented  by  this  record  is,  as  to  the  admissibility  of  the 
foregoing  agreement  in  evidence,  under  the  pleadings  in  this 
case. 

The  defendants  aver,  in  their  answer,  that  the  agreement 
of  July  18,  1868,  released  them  from  all  liability  upon  the 
contract  for  gold  dust,  and  that  they  are  wholly  discharged 
from  the  obligations  of  the  same.  It  is  claimed  by  defend- 
ants that  this  agreement  is  a  merger  of  the  gold  dust  con- 
tract, that  it  was  designed  to,  and  that  it  does,  take  the  place 
of  said  contract,  and  that,  by  reason  of  this  agreement,  a 
Hght  of  action  upon  the  contract  or  note  in  complaint  de- 
scribed has  ceased. 

It  thus  becomes  necessary  to  ascertain,  by  careful  analysis 
and  interpretation,  the  true  intent  and  meaning  of  the  agree- 
ment of  July  18,  1868. 

At  the  time  this  agreement  was  made,  the  contract  for 
gold  dust  (or  note,  as  I  will  hereafter  call  it  for  convenience) 
had  become  due,  and  a  suit  in  attachment  had  been  com- 
menced against  defendants,  including  defendant  Vanderlip, 
and  this  situation  of  the  parties  we  have  the  right  to  con- 
sider, to  enable  us  to  properly  interpret  their  acts.  The 
plaintiffs  were  demanding  their  pay  upon  the  note  then  due 
and  unpaid  :  the  defendants  could  not  meet  this  obligation, 
and  this  agreement  was  the  result  of  this  situation.  Was  it 
the  intention  of  the  parties  thereto,  and  did  they  in  terms 
merge  the  note  in  the  agreement,  and  thereby  abandon  and 
lose  their  rights  and  interests  in  the  note?  The  answer  to 
this  question  will  decide  the  case. 


408  CREIGHTON  v.  VANDEBLIP.  [Aug.  T., 

The  stipulations  of  the  agreement : 

(1.)  Caused  the  suit  in  attachment  to  be  dismissed  and 
settled. 

(2.)  It  changed  the  rate  of  interest  on  the  note  from  five 
per  cent  to  three  per  cent  per  month. 

(3.)  It  extended  the  payment  of  the  note  for  one  year, 
from  July  18,  1868. 

(4.)  It  stipulated  to  deliver  ditch  and  mining  property  there- 
in described  to  defendants  Thomas  and  McRoberts,  and  from 
the  proceeds  thereof  to  pay  first  a  note  held  and  owned  by 
plaintiffs  against  Vanderlip  and  one  James  McEvily,  for  two 
hundred  and  twenty-two  ounces  and  four  and  one-half  pen- 
nyweights of  gold  dust ;  and,  second,  to  pay  the  note  in  the 
complaint  described ;  and,  third,  to  remain  in  possession  of 
said  property,  and  to  work  the  same  until  they  should  fully 
re-imburse  themselves,  and  pay  back  to  themselves  all  the 
moneys  or  gold  dust  that  they  should  so  pay  on  said  notes. 

(5.)  If,  from  any  cause,  defendants  are  hindered  or  pre- 
vented, by  rent  or  sale  of  ditch  and  mining  property,  from 
paying  notes,  then  the  plaintiffs  bind  themselves  to  rebate 
all  interest  on  note  in  complaint  described,  and  the  payments 
that  have  been  made  to  be  applied  upon  the  principal  of 
said  note. 

(6.)  To  further  secure  the  payment  of  said  note,  the 
defendants  agree  to  cause  one  George  W.  Allen  to  execute 
and  deliver  to  plaintiffs  a  mortgage  of  one  undivided  one- 
fourth  interest  in  the  Highland  and  Pine  Grove  Fluming 
Company  of  Madison  County,  M.  T. 

It  will  be  observed  that  the  note,  as  a  distinctive  separate 
obligation,  is  nowhere  lost  sight  of  in  this  agreement.  The 
rate  of  interest  is  changed  from  five  to  three  per  cent  per 
month,  but  the  note  is  still  to  bear  interest  and  to  be  in 
full  force  and  operation  for  that  and  all  other  purposes. 
The  time  of  the  payment  is  delayed  for  one  year,  but  at  the 
end  of  the  year  the  amount  due  thereon  could  have  been 
demanded,  and  can  it  be  doubted  that  a  suit  thereon  could 
have  been  instituted  and  payment  enforced,  notwithstand- 
ing this  agreement  ? 


1871.]  CBEIGHTON  v.  VANDEELIP.  409 

The  full  force  and  effect  of  this  agreement  was,  to  extend 
the  time  for  the  payment  of  the  note,  and  to  reduce  the  rate 
of  interest  thereon,  and  it  operates  simply  as  collateral 
security  to  the  note.  The  note  was  due.  The  plaintiff 
promised  to  delay  payment,  but,  in  consideration  of  such 
promise,  lie  was  to  receive  a  mortgage  against  Allen,  and 
the  note  against  Vanderlip  and  McEvily  was  to  be  paid. 

The  agreement  operates  to  place  in  the  hands  of  the 
defendants  the  means  whereby  to  pay  the  note,  and  every 
purpose  and  intent  thereof  was  to  create  security  for  the 
payment  of  the  note,  and  if  there  has  been  a  failure  to  per- 
form this  agreement  by  the  plaintiffs,  on  their  part,  an  action 
could  be  maintained  against  them  thereon,  but  whether  the 
agreement  itself  fixes  the  measure  of  damages,  and  whether 
it  could  be  set  up  as  an  equitable  defense  to  this  note,  it  is 
not  now  necessary  to  determine. 

The  agreement  operates  to  delay  the  payment  of  the  note, 
and  where  the  promisee  of  a  note,  payable  at  a  day  certain, 
contracts  at  the  time  the  note  is  given  or  after  it  has  become 
due,  not  to  demand  payment  of  it  until  a  certain  time  after 
its  maturity,  such  contract  is  a  collateral  promise  for  the 
breach  of  which,  if  there  be  a  legal  consideration,  an  action 
may  lie,  but  it  will  not  bar  an  action  on  the  note  when  due 
by  the  terms  of  it.  4  Mass.  414.  An  agreement,  to  ope- 
rate as  a  merger  of  a  note,  must  be  such  a  one  as  by  its  terms 
or  by  its  legal  intent  and  meaning  would  defeat  a  right  of 
action  on  the  note. 

This  agreement  was  offered  and  received  in  evidence  to 
support  the  allegation  of  the  answer,  that  the  agreement 
released  defendants  from  all  liability  on  the  note.  We  are 
of  opinion  that  the  agreement  does  not  operate  to  that 
extent,  and  that  it  does  not  support  the  allegation  of  the 
answer ;  and,  upon  the  principle  that  the  evidence  offered 
must  correspond  with  the  allegations,  and  be  confined  to 
the  point  in  issue,  the  agreement  was  improperly  received 
in  evidence  under  the  pleadings  in  the  case. 

It  may  be  proper  to  remark,  that  although  the  damages 
that  may  have  resulted  to  the  defendants,  by  a  breach  of 
VOL.  1  —  62. 


410  ROBERTSON  v.  SMITH.  [Aug.  T., 

this  contract  on  the  part  of  the  plaintiffs,  may  have  been 
set  up  as  an  offset  to  the  note  (a  question  we  do  not  think 
necessary  to  decide),  yet,  there  are  no  allegations  of  dam- 
ages, for  the  breach  of  said  contract  in  the  answer,  which 
would  entitle  the  defendants  to  prove  the  same. 

The  order  overruling  the  motion  for  a  new  trial  is  set 
aside,  judgment  reversed,  and  cause  remanded  for  further 
proceedings. 

Exceptions  sustained. 


ROBERTSON  et  al.,  respondents,  v.  SMITH  et  al.,  appellants. 

STATUTORY  CONSTRUCTION  —  mining  act  of  congress  —  rights  of  miners.  Sec- 
tion 9  of  the  general  mining  act  of  the  United  States,  approved  July  26, 
1866,  grants  to  the  proper  persons  an  easement  upon  the  mineral  lands  of 
the  public  domain,  which  they  may  appropriate  according  to  the  local  rules 
and  customs  of  miners  in  the  mining  district  in  which  the  same  may  be 
situated,  and  thereby  legalizes  the  mining  upon  the  public  lands  of  the 
United  States  for  the  precious  metals. 

POSSESSION  OF  MIXING  GROUND — presumption  —  mining  customs.  It  will  be 
presumed,  in  the  absence  of  evidence,  that  the  parties  in  the  possession  of 
mining  claims  hold  them  according  to  the  local  rules  and  customs  of  the 
miners  in  the  district. 

STATUTORY  CONSTRUCTION  —  grants  to  miners  —  implied  right.  The  grants  made 
by  congress  in  the  mining  law  of  July  26, 1866,  should  be  liberally  construed 
in  favor  of  the  grantee ;  and  the  grant  of  the  right  to  occupy  and  explore 
the  mineral  lands  of  the  United  States  carries  with  it  the  implied  right  to 
extract  the  precious  metals  found  by  the  occupant  and  explorer. 

RULES  OF  MINERS  —  vested  riglits.  The  right  to  occupy,  explore  and  extract 
the  precious  metals  in  the  mineral  lands  of  the  United  States  becomes 
vested  in  the  party  who  locates  these  lands  according  to  the  local  rules  and 
customs  of  the  mining  district  in  which  they  are  situated. 

TITLE  TO  MINING  CLAIMS  —  rights  of  miners.  The  fee  in  the  land,  on  which 
mining  claims  are  located,  remains  in  the  United  States,  but  the  rights  of 
miners  are  incident  to  the  fee  and  have  been  carved  out  of  it. 

STATUTORY  CONSTRUCTION — grant  by  congress  for  highways  —  compensation. 
Section  8  of  the  general  mining  act  of  congress  of  July  26,  1866,  grants  to 
the  public  a  right  of  way  for  the  construction  of  highways  over  public 
lauds,  which  have  not  been  otherwise  appropriated;  but  neither  the  county 
commissioners  nor  the  territorial  legislature  can  take  land  for  highways  i«. 


1871.]  ROBERTSON  v.  SMITH.  411 

which  miners  have  acquired  vested  rights,  without  giving  a  just  compensa- 
tion for  damages  to  those  rights. 

STATUTORY  CONSTRUCTION — reserved  rights  by  congress  —  miners'  custom*.  The 
clause  in  section  1  of  the  general  mining  act  of  July  20,  1866,  "subject  to 
such  regulations  as  may  be  prescribed  by  law,"  is  a  reservation  of  the  right 
by  congress  to  regulate  by  legal  enactments  the  manner  and  conditions 
under  which  claims  must  be  worked  by  miners.  The  clause  in  the  same 
section,  "  subject  also  to  the  local  customs  or  rules  of  miners  in  the  sevoral 
mining  districts,"  relates  to  the  rules,  customs  and  regulations  of  miners 
regarding  the  location,  user  and  forfeiture  of  mining  claims. 

VESTED  RIGHTS  OF  MINERS  —  compensation  —  highway.  Lauds  of  the  United 
States,  in  which  miners  have  vested  rights,  cannot  be  taken  for  the  public 
use  for  a  highway,  if  there  is  no  act  of  the  legislature  providing  for  a  just 
compensation  to  the  miners. 

Appeal  from  the  Third  District,  Meagher  County. 

THE  judgment  in  this  action  was  rendered  in  July,  1871, 
by  WADE,  J.  The  other  facts  are  stated  in  the  opinion. 

G.  GK  SYMES  and  S.  ORB,  for  appellants. 

Persons  mining  on  the  public  domain  before  the  act  of 
congress  of  July  26,  1866,  were  trespassers  and  could  have 
no  possessory  rights.  Yale  on  Water  Rights,  331-334 ; 
United  States  v.  Gear,  3  How.  120  ;  Cotton  v.  United  States, 
11  id.  229.  The  act  of  congress  of  July  26,  1866,  expressly 
reserves  from  possessory  rights  granted  to  miners  the  right 
of  way  over  the  public  domain  for  roads.  14  U.  S.  Stat. 
-253,  §8. 

The  legislature  can  lay  out  and  establish  roads  by  an  ex- 
]  >ress  act,  or  by  delegating  the  power  to  inferior  tribunals. 
The  legislature  of  1866  incorporated  "The  Eldorado  and 
Diamond  City  Wagon  Road  Company."  The  law  was  an- 
nulled by  congress  and  re-enacted  in  1867.  Acts  1867,  127 
This  made  the  road  a  public  highway.  In  1869  the  legisla- 
ture repealed  the  franchise  and  made  the  road  a  free  public 
highway.  Acts  1869, 112.  The  legislature  of  1867  made  all 
roads  then  laid  out  or  traveled  public  highways.  Acts 
1867,  89.  These  acts  make  a  legal  public  highway  over  the 
respondents'  mining  ground. 

No  compensation  was  required  to  be  made  to  the  owners 
of  the  mining  ground.  The  government  grants  the  right 


412  ROBERTSON  «.  SMITH.  [Aug.  T. 

of  way  to  the  community  and  expressly  reserves  from  indi- 
viduals any  possessory  right  that  would  conflict  with  it 
14  U.  S.  Stat.  253,  §  8. 

Appellants'  right  to  maintain  a  suit  to  prevent  travei 
on  the  road  is  barred  by  the  statute  of  limitations.  Acts 
1865,  467. 

The  alleged  agreement  of  respondents'  predecessors  in 
interest  with  persons  when  the  road  was  constructed,  can- 
not affect  the  interests  of  the  community,  who  have  the 
right  to  travel  the  road.  If  this  is  not  a  lawful  road,  there 
is  not  a  road  in  the  Territory  that  may  not  be  closed.  The 
road  was  duly  laid  out  by  the  county  commissioners  and 
the  supervisor,  respondent  Smith,  was  lawfully  empowered 
to  keep  the  road  in  repair.  Acts  1865,  501 ;  Acts  1869,  112. 

CHUMASERO  &  CHAD  WICK,  for  respondents. 

Respondents  were  in  possession  and  working  their  mining 
ground  long  before  the  road  was  thought  of.  The  toll-road 
was  incorporated  after  respondents  had  located  and  taken 
possession  of  the  ground.  Acts  1867,  127.  Respondents 
gave  the  toll-road  company  the  privilege  of  laying  out  and 
using  the  road  over  their  ground  until  they  wanted  it  for 
mining  purposes. 

Miners  have  always  had  an  implied  license  from  the  gov- 
ernment to  mine  for  precious  metals  on  the  public  lands. 
The  act  of  congress  of  July  26,  1866,  recognizes  this  right 
of  miners.  14  U.  S.  Stat.  253.  It  recognizes  these  mining 
claims  as  property. 

The  taking  of  private  property  for  public  uses  will  be 
enjoined  until  provision  for  compensation  be  made  by  law 
and  compensation  paid.  5th  Amend.  U.  S.  Const. ;  Bona- 
parte v.  Camden  &  Am~boy  Railroad  Co.,  Bald.  205  ;  Atkin- 
son v.  Philadelphia  &  T.  JRailroad  Co.,  14  Haz.  Penn. 
Reg.  10. 

There  is  no  law  in  Montana  providing  for  laying  out 
roads.  There  is  only  one  provision  relating  thereto.  Acts 
1865,  501,  §  14,  cl.  8. 

The  legislature  had  no  power  to  declare  by  a  repealing 


1871.]  ROBERTSON  v.  SMITH.  418 

enactment  that  the  road,  which  had  been  laid  out  and  used 
by  the  sufferance  of  miners,  should  be  a  public  highway 
without  providing  compensation.  Where  compensation  for 
land  taken  for  a  road  by  a  county  does  not  precede  the 
taking,  the  entire  action  of  the  county  authorities  is  void. 
Johnson  v.  Alarneda  County,  14  Gal.  106. 

All  statutory  modes  of  divesting  titles  are  strictly  con- 
strued and  must  be  strictly  pursued.  Beasley  v.  Mountain 
L.  Co.,  13  Gal.  306;  Sedgw.  Stat.  L.  319  ;  Dwarrs  on  Stats. 
611 ;  Mokelumne  H.  M.  Co.  v.  Woodbury,  14  Gal.  427.  If 
the  statute  condemning  land  for  road  purposes  is  unconsti- 
tutional, or  compensation  is  not  tendered,  a  perpetual  in- 
junction against  opening  the  road  will  be  granted.  Gard- 
ner v.  Newbury,  2  Johns.  Ch.  162  ;  Mokelumne  H.  M.  Co. 
v.  Woodbury,  14  Gal.  427. 

No  road  has  ever  been  laid  out  over  this  ground  of  re- 
spondents by  any  authority  except  the  act  of  the  legislature 
which  repealed  the  charter.  This  act  is  unconstitutional 
and  void.  The  legislature  cannot,  by  direct  act,  or  by  dele- 
gation of  power  to  others,  deprive  any  one  of  his  property 
without  compensation. 

KNOWLES,  J.  This  cause  comes  to  this  court  on  appeal 
from  an  order  granting  an  injunction  restraining  the  defend- 
ants from  laying  out  and  maintaining  a  highway  over  certain 
mining  claims  belonging  to  the  plaintiffs.  It  appears  from 
the  record,  that  plaintiffs  and  their  grantors  have  claimed 
and  possessed  a  mining  interest  in  these  claims  since  A.  D. 
1865.  That  they  are  in  possession  of  them  now,  and  that 
they  have  expended  quite  a  sum  of  money  in  opening  and 
in  preparing  to  work  the  same.  That  defendants,  Ford, 
Keene  and  Sterling,  are  the  county  commissioners  of  Meagher 
county,  and  as  such  had  laid  out  a  road  up  Cement  gulch, 
being  that  upon  which  plaintiffs'  mining  claims  are  situ- 
ated, and  over  these  claims.  That  the  defendant  Smith 
was  a  road  supervisor,  and,  as  such,  was  proceeding  under 
the  directions  of  the  above-named  commissioners  to  open 
said  road.  That  there  was  granted  by  the  legislative  assem- 


414  ROBERTSON  v.  SMITH.  [Aug.  T., 

bly  of  this  Territory,  subsequent  to  the  location  of  plain- 
tiffs' mining  claims,  a  charter  to  certain  persons,  to  lay  out 
and  maintain  a  toll-road  up  said  Cement  gulch,  and  that,  in 
pursuance  of  said  charter,  these  persons  did  open  and  main 
tain  such  road.  That  a  subsequent  legislative  assembly 
repealed  the  act  granting  this  charter,  and,  by  an  act,  de- 
clared this  road  a  public  highway. 

The  defendants  claim,  that  by  virtue  of  the  provisions  of 
an  act  of  congress,  passed  July  26,  1866,  entitled  "An  act 
providing  for  the  right  of  way  to  ditch  and  canal  owners, 
over  public  lands,  and  for  other  purposes"  (see  14  U.  S. 
Stat.  at  Large,  253),  they  were  vested  with  the  right  to  lay 
out  and  maintain  this  road.  The  section  of  said  act  which 
they  claim  grants  them  this  right  reads  as  follows  : 

SEC.  8.  "That  the  right  of  way  for  the  construction  of 
highways  over  public  lands,  not  reserved  for  public  uses,  is 
hereby  granted." 

The  first  question  then  presented  for  our  consideration  is, 
were  the  lands  upon  which  these  mining  claims  are  situ- 
ated fully  public  lands  ? 

The  same  act  which  grants  this  right  to  construct  high- 
ways over  public  lands,  grants  to  citizens  of  the  United 
States,  and  those  who  have  declared  their  intentions  to 
become  such,  the  right  to  explore  and  occupy  the  mineral 
lands  of  the  public  domain,  subject  to  such  regulations  as 
may  be  prescribed  by  law,  and  subject,  also,  to  the  local 
customs  and  rules  of  miners  in  the  several  mining  districts, 
so  far  as  the  same  may  not  be  in  conflict  with  the  laws  of 
the  United  States.  14  U.  S.  Stat.  at  Large,  §  1,  p.  253. 

We  hold,  that  this  section  of  that  act  grants  to  the  proper 
person  an  easement  upon  such  of  the  mineral  lands  belong- 
ing to  the  public  domain  of  the  United  States,  as  he  may 
appropriate,  in  accordance  with  the  local  rules  and  customs 
of  miners  in  the  mining  district,  in  which  the  same  may  be 
situated,  there  being  at  present  no  regulations  prescribed 
by  law  to  vary  or  limit  these.  There  is  no  point  presented 
in  this  case  that  would  imply  that  plaintiffs  did  not  hold 
their  mining  claims,  in  accordance  with  the  rules  and  cue- 


1871.]  ROBERTSON  v.  SMITH.  415 

toms  of  the  miners  in  the  district  in  which  the  same  are 
situated.  They  being  in  possession  of  them,  it  will  be  pre- 
sumed that  they  hold  them  in  accordance  with  such  rules 
and  customs,  upon  the  same  principle  that  the  possessor  of 
any  real  estate  is  presumed  to  be  the  owner  thereof,  until 
the  contrary  is  shown. 

This  easement  is  one  of  a  very  extensive  character,  for  it 
gives  the  owner  thereof  the  right  to  occupy  and  explore 
such  land.  Being  a  right  received  by  legislative  grant,  it 
should  receive  no  narrow  construction. 

The  rule  may  be  stated  as  a  general  one,  in  respect  to 
legislative  grants  in  this  country,  that  they  should  be  con- 
strued liberally  in  favor  of  the  grantee,  and  in  such  a  manner 
as  to  give  them  a  full  and  liberal  operation,  so  as  to  carry 
out  the  legislative  intent,  where  that  can  be  ascertained. 
See  2  Washb.  on  Real  Prop.  539.  Considering  the  history 
of  mining  for  the  precious  metals  in  the  mineral  lands  of 
the  United  States,  and  the  history  of  the  passage  of  the  act 
under  consideration,  it  cannot  be  doubted  that  congress 
intended  by  it  to  legalize  the  mining  upon  the  public  domain 
for  precious  metals,  which  up  to  the  passage  of  the  same  had 
born  carried  on  in  such  a  manner  as  to  make  those  engaged 
therein  trespassers  as  against  the  general  government.  \Ve 
may  assert,  then,  that  the  grant  to  occupy  and  explore  the 
public  mineral  lands  belonging  to  the  public  domain,  car- 
ried with  it,  by  implication,  the  right  to  take  what  was 
found  by  such  exploration,  namely,  the  precious  metals  ;  for, 
without  this  right,  the  grant  would  be  of  no  utility  to  those 
it  was  intended  to  benefit .  The  only  object  any  miner  would 
have  in  occupying  and  exploring  any  mineral  land,  would 
be  the  extraction  therefrom  of  metals  therein  contained. 
Without  this  right,  the  miner  who  does  so  would  still  be  a 
trespasser  against  the  general  government.  I  am  aware  that 
in  the  case  of  Charles  Rioer  Bridge  v.  Warren  Bridge,  11 
Pet.  420,  in  relation  to  franchises,  the  supreme  court  of 
the  United  States  held,  that  a  legislative  grant  should  be 
strictly  construed,  and  that  nothing  could  be  derived  by 
implication  from  such  a  grant.  Yet,  in  relation  to  legisla- 


4J  6  ROBERTSON  v.  SMITH.  [Aug.  T., 

tive  grants  of  this  character,  I  believe  that  court  would  be 
more  liberal.  Certainly,  public  policy  would  not  dictate  so 
narrow  a  construction.  Yale,  in  his  treatise  on  mining 
claims  and  water  rights,  maintains  that  this  grant  gives  as 
extensive  rights  to  the  miner,  in  regard  to  extracting  the 
precious  metals  from  a  mining  claim,  as  those  specified 
above.  See  Yale  on  Mining  Claims  and  Water  Rights, 
355,  356. 

This  right  to  occupy,  explore  and  extract  from  mineral 
lands  the  precious  metals,  is  of  a  higher  character  than  if 
created  by  what  is  termed  a  parol  license,  for  it  is  given  by 
an  act  of  congress  ;  and,  hence,  equivalent  to  a  patent  from 
the  United  States  to  the  same. 

"For  the  transfer,  by  the  United  States  or  by  a  State,  of 
the  title  of  land,  no  particular  form  is  required.  It  may  be 
done  by  special  act  of  legislation,  by  a  clause  inserted  in  a 
treaty  by  the  treaty -making  power,  or  by  patent  issued  by 
one  authorized  to  represent  the  sovereignty."  2  Washb.  on 
Real  Prop.  240. 

Again:  "A  grant  may  be  made  by  law  as  well  as 
by  patent  issued  pursuant  to  law."  2  Washb.  on  Real 
Prop.  240. 

Of  course,  this  right  to  occupy,  explore  and  extract  the 
precious  metals  from  the  mineral  lands  belonging  to  the 
public  domain  is  not  unlimited.  It  is  restricted  by  the 
local  rules  and  customs  of  the  miners  of  the  district  in 
which  such  land  is  situated.  These  rules  and  customs  refer 
to  the  location,  user  and  forfeiture  of  mining  claims.  When 
a  miner  locates  a  particular  portion  of  mining  land,  in  ac- 
cordance with  these  rules  and  customs,  then  the  grant  from 
the  general  government  to  occupy,  explore  and  take  there 
from  the  precious  metals,  accrues  to  such  miner  over  the 
ground  located.  The  effect  of  this  statute,  then,  is  to  grant 
these  rights  over  the  ground  located,  in  accordance  with  such 
rules,  to  as  full  an  extent  as  if  the  land  had  been  designated 
in  the  law. 

While  the  general  government  then  holds  the  fee  in  the 
land  upon  which  these  mining  claims  are  situated,  it  has 


1871.]  ROBERTSON  0.  SMITH.  417 

parted  with  an  incorporeal  hereditament  in  the  same,  that 
is,  the  right  to  occupy,  explore  and  extract  the  precious 
metals  therefrom  ;  and  these  rights  have  become  vested  in 
the  plaintiffs,  by  virtue  of  a  grant  from  the  general  govern- 
ment ;  hence,  these  mining  claims  are  no  longer  to  the  fuD 
extent  public  lands.  The  title  in  fee  is,  but  these  rights, 
which  were  incident  to  the  fee,  have  been  carved  out  of  it, 
and  are  no  longer  government  property  but  that  of  the  plain- 
tiffs, and  it  is  property  which  the  law  will  protect.  The  use 
to  which  the  defendants  would  devote  this  property,  would 
destroy  plaintiff's  rights.  The  section  of  the  act  under 
which  defendants  claim  their  rights  are  granted  does  not 
devote  any  particular  portion  of  the  public  domain  to  a 
highway.  It  gives  a  general  right  to  the  public  of  a  right 
of  way  for  that  purpose  over  public  lands,  and  should  be 
construed  only  to  offer  to  devote  to  that  use  any  lands 
belonging  to  the  general  government,  not  reserved  for  pub- 
lic uses,  that  the  public  might,  through  its  proper  officers, 
select.  Until  the  public  then  accepts  the  offer  made,  and 
seeks  to  devote  some  particular  portion  of  the  public  domain 
for  a  highway,  no  rights  accrue  to  the  public  over  such 
lands.  See  The  City  and  County  of  San  Francisco  v. 
David  Colder  wood  et  al.,  31  Cal.  585.  No  rights  could 
have  accrued  to  the  public  in  the  land,  upon  any  portion  of 
Cement  gulch,  until  either  the  legislature  declared  the  toll- 
road  up  the  same  a  highway,  or  until  the  said  county  com- 
missioners sought  to  locate  one  there.  We  have  seen, 
however,  that  before  either  of  these  events  transpired,  the 
rights  of  the  plaintiffs  had  become  vested.  No  greater  rights 
could  accrue  to  the  public  in  these  lands,  than  the  govern- 
ment had  at  the  time  the  public  accepted  the  offer  made  in 
one  of  the  ways  above  specified.  The  government,  as  we  have 
seen,  had  parted  with  an  easement  to  plaintiffs.  Neither 
the  defendants  as  county  officers,  or  the  Territory,  or  even 
the  general  government,  could  devote  this  ground  to  the  use 
of  a  highway,  without  giving  the  plaintiffs  a  just  compen- 
sation for  all  the  damage  done  their  rights. 
The  defendants  insist  that  any  miner  who  locates  a  mining 


418  ROBERTSON  -e.  SMITH.  [Aug.  T-> 

claim  does  so  subject  to  right  of  the  public  under  the  sec- 
tion of  the  law  referred  to  above  to  construct  a  highway 
over  the  same.  There  is  no  reservation  of  this  kind  in  the 
grant  to  the  miner.  The  clause,  "  subject  to  such  regula- 
tions as  may  be  prescribed  by  law,"  reserves  only  the  right 
to  regulate  the  manner  and  conditions  under  which  miners 
must  work  their  claims  by  legal  enactments.  The  clause, 
"  subject  to  the  local  customs  or  rules  of  miners  in  the  sev- 
eral mining  districts,"  refers  evidently  to  the  rules,  customs 
and  regulations  of  miners  in  relation  to  the  location,  user 
and  forfeiture  of  mining  claims.  By  no  rule  of  legal  con- 
struction that  I  am  aware  of  can  these  clauses  be  made  to 
refer  to  a  reservation  of  a  right  to  the  public  to  construct  a 
highway  over  located  mining  claims.  The  proper  construc- 
tion of  the  law  upon  these  subjects  is,  I  think,  that  miners 
have  the  right  to  occupy  and  explore  unappropriated  pub- 
lic mineral  lands  ;  that  the  public  have  a  right  to  an  ease- 
ment for  a  highway  over  the  unoccupied  public  domain, 
and  that  whichever  is  prior  in  time  is  prior  in  right.  It  is 
as  inconsistent  for  the  public  to  claim  a  right  of  way  over 
an  appropriated  mining  claim  without  giving  the  owner 
thereof  a  just  compensation  for  his  rights  as  it  would  be  for 
a  miner  to  claim  the  right  to  appropriate  for  mining  pur- 
poses a  portion  of  the  public  domain  which  had  been  de- 
voted to  the  use  of  a  public  highway.  The  statute  does  not, 
by  express  terms,  or  by  implication,  make  either  of  these 
rights  superior  to  each  other.  There  was  no  attempt  on  the 
part  of  the  defendants  to  have  the  rights  of  plaintiffs  seques- 
tered for  the  benefit  of  the  public  upon  giving  to  them  a 
just  compensation  therefor.  As  far  as  we  have  been  able 
to  ascertain  there  is  no  provision  in  the  statutes  in  this  Ter- 
ritory which  provides  for  the  paying  of  a  just  compensa- 
tion for  private  property  which  is  sought  to  be  devoted  to  a 
public  use  for  a  highway.  Until  there  is  some  provision 
for  this  I  do  not  see  how  private  property  can  be  devoted  to 
the  use  of  the  public  for  such  a  purpose,  notwithstanding 
the  necessity  for  such  an  appropriation  may  be  very  great. 
It  would  seem  that  it  was  a  condition  precedent  that  a  just 


1871.]  ROBERTSON  v.  SMITH.  419 

compensation  should  be  given  for  private  property  before  it 
can  be  taken  for  a  public  use. 

It  does  not  fully  appear  that  the  defendants  claim  that 
the  public  was  subrogated  to  the  rights  of  those  persons 
who  had  constructed  the  toll-road  over  these  claims.  How- 
ever, if  they  do  the  public  could  receive  no  greater  rights 
than  these  parties  had.  It  does  not  appear  that  they  had 
any  rights  but  the  permission  to  construct  their  road  over 
these  claims  and  use  it  during  the  pleasure  of  the  plaintiffs. 
The  charter  given  to  those  persons  could  have  given  them 
no  right  to  construct  their  road  over  these  claims  so  as  to 
damage  the  rights  of  plaintiffs,  for  a  provision  in  a  charter 
granting  such  a  right  would  be  the  transferring  of  the  prop- 
erty of  one  set  of  persons  to  another,  and  would  be  void  as 
contravening  the  constitutional  provision  that  no  one  can  be 
deprived  of  his  property  without  due  process  of  law. 

For  these  reasons  the  order  of  the  court  below  is  affirmed. 


CASES 

ARGUED   AND   DETERMINED 


IN  TH  E 


SUPREME  COURT 


JANUARY  TBUM,  1872,  HELD  IN  VIRGINIA  CITY. 


Present : 

HON.  DfiCIUS  S.  WADE,  CHIEF  JUSTIOB. 

HON.  HIRAM  KNOWLES,  ) 

HON.  JOHN  L.  MURPHY,  )  JuSTIOT8- 


KEMP,  respondent,  v.  McCoRMiCK  et  al.,  appellants. 

PLEADING  —  abbreviation  of  name  of  "party.  A  party  can  be  described  in  • 
pleading  by  a  known  and  accepted  abbreviation  of  his  Christian  name. 

ESTOPPEL  —  denial  of  name — promissory  note.  The  maker  of  a  promissory 
note  is  estopped  from  denying  his  name  or  that  of  the  payee  as  it  is  written 
in  the  note. 

PLEADING  —  counter-claim  to  joint  debt — promissory  note.  In  an  action  on  a 
promissory  note  against  two  makers,  who  are  jointly  liable,  one  of  them 
cannot  plead  as  a  counter-claim  an  individual  debt  due  from  the  payee  to 
himself,  unless  he  alleges  that  the  payee  is  insolvent,  or  an  equitable  ground 
of  defence. 


1872.]  KEMP  v.  McCoRMicx.  421 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

KEMP  commenced  this  action  in  October,  1871,  and  de- 
scribed himself  in  the  complaint  as  "Alex.  Kemp,"  and  the 
defendants  as  "  Jno.  McCormick"  and  "  Wm.  H.  Taylor." 
The  cause  of  action  was  the  following  instrument : 

"$650.  HELENA,  M.  T.,  Mar.  1st,  1871. 

"  On  the  first  day  of  June  next  we  promise  to  pay  Alex. 
Kemp  or  order  the  sum  of  six  hundred  and  fifty  dollars, 
for  value  received,  with  interest  after  due  at  the  rate  of  twc 
per  cent  per  month  till  paid. 

"JNO.  McCORMICK, 
[stamp.]  "WM.  H.  TAYLOR." 

Kemp  was  described  in  the  summons  as  "Alex.  Kemp." 

In  November,  1871,  Kemp  filed  an  amended  complaint 
and  was  described  as  "  Alexander  Kemp." 

The  answer  of  John  McCormick  set  forth  that  there  was 
a  variance  between  the  original  complaint  and  summons, 
and  the  amended  complaint,  in  the  description  of  the  plain- 
tiff as  "  Alex.  Kemp"  and  "  Alexander  Kemp  ;"  and  that 
the  note  was  made  to  "Alex.  Kemp,"  while  the  amended 
complaint  was  filed  in  the  name  of  "  Alexander  Kemp  ;" 
and  that  his  name  was  not  "  Jno.  McCormick,"  but  "John 
McCormick." 

The  other  facts  appear  in  the  opinion. 

The  court,  WADE,  J.,  rendered  judgment  in  favor  of  Kemp 
on  the  pleadings,  and  McCormick  appealed. 

CHUMASERO  &  CHAD  WICK,  for  appellants. 

The  court  erred  in  striking  out  the  answer.  The  sum- 
mons did  not  state  correctly  the  parties  to  the  action.  A 
party  is  bound  to  know  his  own  name,  and  must  sue  and  be 
sued  by  it.  The  misnomer  is  properly  pleaded  by  way  of 
answer.  Respondent  could  have  amended  under  section  68 
of  the  practice  act.  If  the  answer  was  not  true,  respondent 
could  have  taken  issue  by  replication. 

The  answer  sets  up  a  partial  defense.     It  is  claimed  that 


422  KEMP  v.  MoCoEMiCK.  [Jan.  T., 

the  prayer  for  relief  is  too  broad.  The  facts  and  not  the 
prayer  settle  the  relief  to  be  granted.  Rollin  v.  Forbes,  10 
Gal.  299  ;  People  v.  Merrill,  26  id.  336 ;  Civ.  Prac.  Act, 
§  147  ;  Voorhies'  Code,  §  275. 

An  answer  is  not  frivolous  if  it  sets  up  facts  that  may 
constitute  a  defense,  if  properly  averred.  Voorhies'  Code, 
298,  note  c.  The  decisive  question  is  this  :  Does  the  counter- 
claim or  set-off  in  the  answer  constitute  facts  entitling  the 
appellant  to  recover  money  from  respondent  in  a  separate 
answer  ? 

CULLEN  &  COMLY,  for  respondent. 

It  is  proper  to  describe  a  party  by  an  abbreviation  of  his 
Christian  name.  1  Greenl.  Ev.  11,  8,  note  7  ;  5  U.  S.  Dig.  61, 
title  Name.  The  misspelling  of  appellant's  name  comes 
under  the  principle  of  "idem  sonans."  1  Bouv.  L.  D.  596. 
Appellant,  having  signed  his  name  as  alleged,  is  estopped 
from  denying  it.  2  Bouv.  L.  D.  198,  §  11. 

A  claim  due  to  one  only  of  several  defendants,  sued  upon 
a  joint  liability,  cannot  be  set  up  as  a  counter-claim  in  a 
suit  upon  the  joint  debt.  Peabody  v.  Bloomer,  3  Abb.  Pr. 
353  ;  Waterman  on  Set-offs,  280-282 ;  Woods  v.  Harris,  5 
Blackf.  585  ;  Stone  v.  McConnett,  1  Duvall,  54 ;  Howard  v. 
Shores,  20  Cal.  277. 

MUKPHY,  J.  This  is  an  action  on  a  promissory  note 
executed  by  McCormick  and  one  Taylor,  and  payable  to 
Kemp. 

A  demurrer  was  filed  to  the  original  complaint,  which  was 
confessed,  and  an  amended  complaint  filed,  to  which  de- 
fendant McCormick  filed  a  separate  answer,  setting  up  the 
misnomer  of  the  plaintiff  and  defendant,  and  also  a  set-off 
or  counter-claim. 

Plaintiff  filed  a  motion  to  strike  this  answer  from  the 
files  and  for  judgment  on  the  complaint  as  by  default,  on 
the  ground  of  being  frivolous,  sham,  irrelevant  and  present- 
ing no  defense. 

This  motion  was  sustained,  and  judgment  in  favor  of 


1872.]  KEMP  v.  McCoKMiOK.  428 

plaintiff  entered  by  the  court  below,  to  which  defendants 
appealed. 

1.  As  to  the  question  of  misnomer,  raised  by  the  record, 
we  hold  that  it  is  sufficient  to  describe  a  party  to  an  action 
by  any  known  and  accepted  abbreviation  of  his  Christian 
name,  and  that  the  defendant,  having  signed  his  name  to 
the  note  in  question  with  such  abbreviation,  is  now  estopped 
from  denying  it. 

'>.  As  to  the  question  of  set-off  or  counter-claim  also 
raised  by  the  record  : 

Can  a  claim,  due  to  one  of  several  defendants,  be  set  up 
as  a  counter-claim  in  a  suit  against  such  defendants  upon  a 
joint  debt  or  liability  ? 

We  think  not  in  this  instance. 

The  law  of  set-offs  in  this  Territory  is  regulated  by  the 
•17th  section  of  our  civil  practice  act.  Laws  of  1867,  143. 

It  provides,  that  the  claim  to  be  set  off,  ' '  shall  be  one 
existing  in  favor  of  the  defendant  or  plaintiff,  and  against  a 
plaintiff  or  defendant,  between  whom  a  several  judgment 
might  be  had  in  the  action,"  etc. 

This  is  the  same  as  the  California  statute  on  the  subject 
of  set-off,  and  in  a  judicial  construction  of  the  same  (20 
Cal.  281),  the  converse  of  the  proposition  here  was  there 
held,  where  a  joint  debt  was  sought  to  be  set  off  against  an 
individual  debt. 

And  upon  the  same  principle  an  individual  debt  cannot 
be  set  off  against  a  joint  debt  or  liability. 

The  demand  sought  to  be  thus  set  off  must  be  due  to  all 
of  the  defendants,  before  it  can  be  interposed  as  a  set-off, 
in  the  absence  of  express  provisions  of  the  statute  to  the 
contrary,  unless  it  should  be  upon  purely  equitable  grounds, 
by  averment  and  proof  of  insolvency,  etc.,  which  has  not 
been  attempted  in  this  case. 

There  is  no  error  in  the  action  of  the  court  below  in  striking 
out  the  answer  and  rendering  judgment  upon  the  complaint 

The  judgment  is  affirmed. 

Judgment  affirmed. 


COADY  v.  REINS.  [Jan.  T., 


COADY,  appellant,  «.  REINS,  respondent. 

STATUTE  OF  LIMITATIONS  —  malpractice  —  action  against  physician  for  damages. 
In  this  action  to  recover  damages  for  the  unskillful  treatment  of  a  fractured 
arm,  the  gist  of  the  action  is  the  negligence  of  the  physician,  and  the  stat- 
ute of  limitations  begins  to  run  from  the  time  of  the  alleged  negligence. 

EVIDENCE  —  inj ury  to  the  person.  In  proving  the  actual  injury  caused  by  the 
unskillful  treatment  of  a  patient  by  a  physician,  it  is  competent  to  show  all 
the  facts  resulting  from  the  injury,  from  the  time  the  right  of  action 
accrued  to  the  verdict. 

STATUTORY  CONSTRUCTION  —  statute  of  limitations  —  time  enlarged.  The  act 
of  the  sixth  legislature  amending  "An  act  concerning  limitations,"  approved 
February  9,  1865,  governs  all  cases  in  which  the  right  of  action  existed  at 
the  time  of  its  passage  under  the  first  act,  approved  February  9,  1865,  and 
enlarged  the  time  within  which  the  plaintiff  could  enforce  her  remedy  from 
February  28,  1870,  when  she  was  barred  by  the  first  act,  to  February  28, 
1873. 

STATUTORY  CONSTRUCTION— statute  of  limitations  —  validity  of.  The  act  of  the 
sixth  legislature  amending  the  "Act  concerning  limitations,"  approved 
February  9, 18G5,  relates  to  the  remedy,  is  prospective  in  its  effects  and  does 
not  violate  any  vested  rights. 

POWER  OF  COURTS  —  cannot  legislate  —  limitation.  Courts  cannot  legislate  and 
exempt  parties  from  the  operation  of  a  statute  of  limitation,  if  the  legisla- 
ture has  not  made  any  exception. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THIS  action  was  heard  by  the  court,  WADE,  J.,  in  August, 
1871,  and  judgment  rendered  for  Reins  on  his  demurrer  to 
the  complaint.  The  facts  are  stated  in  the  opinion. 

G-.  Q-.  SYMES  and  WARREN  &  SANDERS,  for  appellant. 

This  action  was  limited  by  the  original  statute  of  limita- 
tions to  two  years  from  the  time  the  cause  of  action  arose. 
Acts  1865,  467,  §  8.  This  was  amended,  and  the  time  waa 
extended  to  live  years.  Acts  1870,  62. 

The  statute  in  force  at  the  time  the  action  was  brought 
governs  it.  The  old  law  was  expressly  repealed  by  the 
amendment  of  1870.  The  complaint  shows  continuing 
damages  resulting  after  the  limitation  had  ceased  to  bar 
recovery  under  the  old  law  in  force,  when  the  act  from 
which  damages  resulted  was  done. 

A  plea  of  the  statute  of  limitations  is  a  plea  of  the  forum, 


1872.]  COADY  v.  REINS.  426 

affects  only  the  remedy,  and  does  not  affect  the  right,  unless 
the  time  is  unreasonably  shortened.  Ogden  v.  8aundersy 
12  Wheat.  350  ;  1  Bouv.  Inst.  334  ;  2  Harrison's  Dig.  373T ; 
Ang.  on  Lira.  63 ;  Call  v.  Hager,  8  Mass.  429 ;  Haywara 
v.  Judd,  4  Minn.  487 ;  Sedgw.  on  Stat.  Law,  659. 

The  statute  is  prospective.  It  applies  to  all  suits  brought 
after  its  passage,  and  affects  only  the  remedy.  McOrea  v. 
Craig,  23  Cal.  522.  The  time  when  the  contract  was  made, 
or  act  done,  under  which  the  cause  of  action  arose,  is  imma- 
terial. Itvss  v.  Duoall,  13  Pet.  64  ;  Bank  of  Alabama  v. 
Dalton*  9  How.  (U.  S.)  527  ;  Patterson  v.  Qaines,  6  id.  602  ; 
Loring  v.  Allen,  9  Gush.  70. 

In  actions  on  the  case  for  negligence  the  statute  of  limi- 
tations begins  to  run  from  the  time  the  consequent  damages 
accrue.  Ang.  on  Lim.  299-319  ;  Starkie  on  Slander  473, 
474  ;  Dyster  v.  Batty e,  3  Barn.  &  Aid.  448  ;  Fisher  \  Pond, 
I  Hill,  672. 

Where  damages  continue,  only  those  can  be  recovered 
which  have  accrued  within  the  time  of  limitation.  Ang. 
en  Lim.,  §  307. 

There  was  no  limitation  law  in  force  at  the  time  the  suit 
was  brought,  except  the  amendment  of  1870. 

CHUM  ASERO  &  CHADWICK,  SHOBER  &  LOWRY,  and  E.  W. 
TOOLE  &  J.  K.  TOOLE,  for  respondent. 

The  statute  of  limitations  commenced  to  run  from  the  time 
the  act  was  done  by  respondent.  Appellant  cannot  avail 
himself  of  the  continuando  in  his  complaint.  Ang.  on  Lim., 
§  141.  The  statute  does  not  run  from  the  time  of  the  conse- 
quent injuries  to  appellant.  Argall  v.  Bryant,  I  Sandf.  98. 

The  statute  of  1865  governs  the  case  and  not  the  act  of 
1870.  To  give  the  last  act  force  and  application  to  this 
cause  would  give  it  a  retroactive  operation.  Laws  can  only 
attach  to  future  action.  They  cannot  attach  to  conduct 
prior  to  the  creation  of  the  law.  The  act  of  1870  was  not 
in  existence  when  the  cause  of  action  accrued  in  this  case. 
The  cause  of  action  accrued  on  February  28,  1868,  and, 
under  the  law  then  in  force,  the  suit  must  be  commenced 
VOL.  L  —  54. 


426  COADY  ?).  REINS.  [Jan.  T., 

within  two  years,  by  February  28,  1870,  or  it  was  barred 
Acts  1865,  466,  467,  §§  1,  8 ;  Acts  1870,  62. 

The  complaint  was  filed  April  12,  1871,  and  the  rights  of 
the  parties  cannot  be  determined  by  the  act  of  1870.  Thomp- 
son v.  Alexander,  11  111.  55.  No  statute  should  be  so  con- 
strued as  to  give  it  a  retrospective  operation.  Battles  v. 
Forbes,  18  Pick.  533 ;  Dash  v.  Van  VleecTf,  7  Johns.  477. 
Statute  should  not  be  construed  to  act  on  rights  already 
existing.  Johnson  v.  Burr  ell,  2  Hill,  238 ;  Woods  v.  Dudley, 
11  Paige,  403. 

MUKPHY,  J.  This  suit  was  commenced  on  the  12th  day 
of  April,  1871,  by  Coady,  to  recover  damages  against  Rein, 
for  unskillfulness,  etc.,  as  a  physician  and  surgeon,  in  setting 
and  treating  her  fractured  and  dislocated  arm  and  elbow,  on 
the  28th  day  of  February,  1868. 

On  the  llth  day  of  July,  1871,  the  defendant  filed  a 
demurrer  to  the  amended  complaint,  setting  forth  as  the 
grounds  thereof:  1.  That  the  action  was  barred  by  the 
statute  of  limitation  ;  and,  2.  That  the  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

The  demurrer  was  sustained  and  judgment  for  costs  ren- 
dered against  the  plaintiff  by  the  court  below,  from  which 
she  has  appealed  to  this  court. 

But  the  only  question  necessary  for  us  to  consider  in  this 
connection  is,  is  the  action  barred  by  the  statute  of  limita- 
tion ? 

There  have  been  but  two  acts  regarding  limitations  passed 
in  the  Territory,  in  February,  1865,  and  January,  1870, 
respectively. 

The  latter  amended  section  8  of  the  former,  embracing 
actions  of  this  nature,  and  repealed  all  former  acts  in  con- 
flict therewith. 

By  the  former,  actions  of  this  character  were  limited  to 
two  years  from  the  time  the  cause  thereof  accrued ;  by  the 
latter,  to  five  years. 

Now  the  question  is,  which  act  is  to  govern  in  this  case. 
But,  when  did  the  right  of  action  accrue  \  let  us  first  inquire, 


1872.]  COADY  0.  REINS.  427 

The  gist  of  the  action  in  this  instance  is  the  negligence 
and  unskillfulness,  or  breach  of  duty  as  laid  in  the  com- 
plaint, and  not  the  injury  or  damage  consequent  thereon. 

If  such  action  were  commenced  immediately  upon  a 
person  becoming  chargeable  in  such  a  case,  it  is  probably 
true  that  no  more  than  nominal  damages  could  be  recovered, 
yet  it  is  clear  that  proof  of  actual  damages  may  extend  to 
and  embrace  facts  occurring  and  growing  out  of  the  injury, 
even  up  to  the  verdict  itself. 

But  the  statute  in  cases  of  this  nature  begins  to  run,  re- 
gardless of  the  form  of  action,  whether  case  or  assumpsit, 
from  the  time  of  the  negligence  or  breach  of  duty. 

And  in  this  case,  under  the  act  in  force  at  the  time  of  said 
negligence  or  breach  of  duty,  it  must  be  held  to  have  com- 
menced to  run  from  the  said  28th  day  of  February,  1868. 

And  since  it  is  true  that,  at  the  commencement  of  this 
action,  the  time  limited  under  the  act  in  force  when  the 
cause  thereof  accrued,  had  expired,  it  is  insisted  by  respond- 
ent that  that  fact  is  conclusive  of  this  case,  and  therefore 
the  suit  is  barred. 

But  it  must  be  borne  in  mind  that  said  act  had  been  re- 
pealed before  said  time,  as  limited  under  it,  had  expired, 
and  before  the  action  was  barred.  And,  also,  that  another 
and  new  act,  extending  and  enlarging  the  time  within  which 
such  actions  could  be  commenced  and  prosecuted,  had  gone 
into  full  force  arid  effect,  while  the  right  of  action  still 
existed  under  the  old  and  original  act.  And  as  the  statute 
of  limitations  applies  only  to  the  remedy,  the  subsequent 
at-t  would  have  the  effect,  on  coming  into  operation,  to  take 
up  and  carry  forward  for  the  length  of  time  thus  provided 
all  the  then  valid  subsisting  causes  of  action. 

And  it  is  also  contended  by  respondent  that  to  apply  said 
last  act  to  the  case  at  bar  would  give  it  a  retroactive  or 
retrospective  operation. 

But  would  such  be  the  effect  in  this  instance  '( 

It  would  doubtless  be  retroactive  when  applied  to  suite 
Having  been  begun  and  pending  when  it  was  passed  or  took 
erteet.  But  in  this  case  no  action  had  been  becjun  or  was 


428  COADY  v.  REINS.  [Jan.  T., 

pending  when  it  went  into  operation ;   only  the  right  of 
action  was  in  existence  at  that  time. 

And  is  it  retrospective  in  its  character  ? 

The  very  words  are,  "an  action  upon  an  account  or  other 
contract,  obligation  or  liability  not  grounded  upon  an  instru- 
ment of  writing,  shall  be  commenced  within  five  years." 
Tt  is  plain  that  it  relates  only  to  the  remedy,  and  is  prospec- 
tive in  every  sense. 

And  it  seems  to  have  been  the  uniform  practice  of  legis- 
latures, and  that,  too,  without  any  well-grounded  objection, 
in  enacting  statutes  of  limitations,  to  make  them  apply  as 
well  to  causes  of  action  which  have  already  accrued,  as 
those  which  may  thereafter  accrue,  if  sufficient  time  be 
allowed  between  the  time  the  act  takes  effect  and  the  period 
fixed  for  the  limitations,  to  afford  a  full  and  ample  oppor- 
tunity to  all  persons  having  such  causes  of  action,  to  com- 
mence their  suits.  See  Lor  ing,  Judge,  etc.,  v.  Attine,  9 
Gush.  68. 

And  by  the  operation  of  the  subsequent  act,  in  its  appli- 
cation to  this  case,  we  see  that  the  right  of  action  is  neither 
extinguished  nor  the  time  within  which  suit  must  be  brought 
to  enforce  it  unreasonably  shortened,  but  is  expressly  ex- 
tended and  enlarged. 

Of  course  it  could  not  be  construed  to  apply  to  causes  of 
action  which  have  accrued  more  than  five  years  previous, 
to  the  time  limited  in  said  act.  without  a  violation  of  vested 
rights. 

But  in  this  case,  about  two  years  only  having  elapsed,  nc 
vested  rights  under  the  act  are  in  any  manner  interfered 
with. 

And  the  fact  must  not  be  overlooked,  that  the  act  in  ques- 
tion makes  no  exception  of  this  class  of  cases. 

The  legislature,  therefore,  having  made  no  exception  from 
the  operation  of  its  provisions,  of  parties  suing  under  such 
circumstances,  the  courts,  of  course,  can  make  none.  Such 
action  by  the  courts  would  be  legislating,  would  be  unwar- 
ranted, beyond  their  province,  and  be  error.  See  Bank  of 
Alabama  v.  Dalton,  0  How.  528,  J529,  an^  cases  cited. 


1872.]  COLUMBIA  MINING  Co.  v.  HOLTER.  429 

The  statute,  then,  that  must  determine  the  right  of  the 
plaintiff  to  bring  this  action,  is  the  one  in  force  when  the 
same  was  brought.  See  Patterson  v.  Gaines,  6  How.  601, 
etc. 

And  as  the  time  under  the  statute  in  force  (January,  1870) 
when  this  action  was  commenced  had  not  expired,  it  was 
and  is  not  barred,  and  the  court  below  committed  error  in 
sustaining  the  demurrer  aforesaid  on  that  ground. 

The  judgment  of  the  court  below  is  reversed  and  the 
cause  remanded. 

Exceptions  sustained. 


COLUMBIA  MINING  COMPANY,  respondent,  v.  HOLTEB  et  aL, 

appellants. 

PRACTICE  —  motion  J or  rehearing  —  equity — aupersedeas.  The  motion  fora 
rehearing  of  au  equity  case  by  this  court  does  not  operate  as  a  supersedeaa, 
and  the  court  below  can  enter  a  decree  in  accordance  with  the  remittitur 
and  mandate  of  this  court,  while  the  motion  is  pending. 

PRACTICE  —  stay  of  judgment — motion.  A  motion  for  a  new  trial  in  an  action 
at  law  does  not  stay  the  execution  of  the  judgment. 

REHEARING  —  rule  of  court  —  terms  of  continuance.  A  party  can  make  a 
motion  for  a  rehearing  under  a  rule  of  this  court.  It  is  not  a  right  given 
by  statute  and  this  court  can  prescribe  the  terms  on  which  a  continuance 
of  the  argument  on  the  motion  is  granted. 

PRACTICE  —  remittitur  recalled  or  stayed  by  justices.  The  justices  of  this 
court,  on  a  proper  application  in  vacation  or  term  time,  can  recall  or  stay 
a  remittitur  and  mandate  that  have  been  erroneously  issued  out  of  this 
court. 

PRACTICE  —  granting  of  rehearing.  A  rehearing  in  an  equity  case  will  not  b« 
granted  after  the  court  below  has  entered  the  decree  of  this  court  accord- 
ing to  its  mandate  and  remittitur. 

MANDATE  OF  THIS  COURT.  The  court  below  must  obey  the  mandate  and  remit- 
titur of  this  court. 

PRACTICE  —  rehearing  — reversal  of  decision.  On  a  motion  for  a  rehearing,  thig 
court  will  rarely,  if  ever,  reverse  its  first  decision,  unless  it  has  overlooked 
some  decisive  question,  or  the  decision  conflicts  with  a  statute  or  controll- 
ing decision. 


430  COLUMBIA  MINING  Co.  t>.  HOLTEK.       [Jan.  T., 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County 
THE  facts  are  stated  in  the   opinion.    The  decree   was 
entered  by  the  court,  WADE,  J. 

E.  W.  TOOLE  &  J.  K.  TOOLE,  for  appellants. 

By  the  motion  for  a  rehearing  in  the  original  case,  and  the 
continuance  of  the  same,  the  jurisdiction  over  the  caust 
was  retained  in  this  court.  No  judgment  could  be  rendered 
in  the  court  below  until  the  motion  for  a  rehearing  had  been 
disposed  of.  This  is  the  only  question  involved  in  the  case 
The  motion  for  rehearing  and  its  continuance  operated  pel 
xe  as  a  supersedeas. 

W.  F.  SANDEKS  and  CHUMASEEO  &  CHADWICK,  for  re- 
spondent. 

The  continuance  of  the  argument  on  the  motion  for  rehear- 
ing was  granted  "  without  stay  of  proceedings."  The  court 
below  was  powerless  to  disobey  the  mandate  of  this  court. 
If  the  motion  operated  as  a  supersedeas,  appellants  have 
not  saved  that  error. 

There  is  a  distinction  between  cases  at  law  and  equity 
At  law  the  motion  for  a  new  trial  does  not  operate  to  stay 
the  execution  of  the  judgment.  In  equity  cases,  this  courl 
can  direct  the  terms  on  which  its  orders  shall  be  made  foi 
continuing  a  rehearing. 

A  rehearing  will  not  be  granted  in  equity  cases,  if  it  has 
been  remitted  to  the  court  below  to  carry  into  effect  the 
decree  of  this  court,  and  a  subsequent  appeal  brings  up 
only  the  proceedings  after  the  mandate.  Browder  v.  Mc- 
Arihur*  7  Wheat.  58. 

If  this  court  should  reverse  its  former  decision,  all  decrees 
would  fall  as  a  consequence  and  no  injustice  would  be  done. 
WambauyTi  v.  Gates.  8  N".  Y.  138. 

MURPHY,  J.  This  suit  was  originally  brought  by  the 
Columbia  Mining  Company  against  Anton  M.  Holter  and 
others,  for  damages,  for  the  diversion  of  certain  water  from 
plaintiff's  mill,  etc.,  and  for  an  injunction. 

Tli ere  was  ;t  verdict  and  judgment  for  defendants  below, 


1872.]  COLUMBIA  MINING  Co.  v.  HOLTER.  431 

and  also  a  decree  dissolving  the  temporary  restraining 
order,  from  which  plaintiff  appealed  to  this  court. 

The  appeal  was  regularly  heard  at  the  last  January  term, 
the  judgment  below  reversed,  the  order  dissolving  the  tem- 
porary restraining  order  set  aside  and  the  cause  remanded, 
with  instructions  to  set  aside  the  general  verdict  of  the  jury, 
and,  upon  the  pleadings  and  special  findings,  render  judg- 
ment in  favor  of  plaintiff  for  nominal  damages,  and  enter  a 
decree  granting  a  perpetual  injunction  as  prayed  for. 

At  the  same  term  a  motion  of  defendants,  for  a  rehearing, 
was  permitted  to  be  filed  and  continued,  the  order  of  con- 
tinuance entered  nunc  pro  tune,  at  the  last  term,  specifying 
"c  without  stay  of  proceedings." 

At  the  following  March  term  of  the  court  below,  on  pre- 
sentation of  the  remittitur  and  mandate,  the  judgment  afore- 
said of  this  court  was  executed  as  directed,  to  which  de- 
fendants excepted,  and  have  appealed  to  this  court. 

There  is  no  complaint  that  the  decree  of  the  court  below 
does  not  conform  to  the  mandate  of  this  court,  nor  that  any 
misconduct  or  irregularity  whatever  was  committed.  The 
only  error  assigned  is,  that  the  court  below  entered  a  de- 
cree pursuant  to  the  remittitur  and  mandate  aforesaid,  while 
the  motion  for  a  rehearing  was  pending  above. 

And  the  only  question  for  us  to  consider  now  is,  did  this 
court,  by  reason  of  said  motion,  retain  jurisdiction  over  the 
case  so  that  the  court  below  could  not  proceed  to  carry 
out  the  judgment  above,  according  to  its  mandate,  or  did 
said  motion  operate  per  se  as  a  supersedeas. 

It  is  a  rule  of  law  that  a  motion  for  a  new  trial  at  law, 
which  is  a  statutory  right,  does  not  operate  of  itself  to  stay 
the  execution  of  a  judgment,  but  requires  a  special  order  to 
that  effect,  on  such  terms  as  the  court  may  prescribe. 

And  there  is  no  substantial  difference  between  a  rehear- 
ing in  equity,  which  opens  the  decree  afresh,  and  places  the 
case  before  the  court  for  trial  anew,  and  a  new  trial  in  a  case 
at  law  tried  and  decided  by  the  court. 

A  motion  for  a  rehearing  in  this  instance,  not  being  even 
a  ri<rht  prescribed  by  statute,  but  simply  by  a  rule  of  this 


432  COLUMBIA  MINING  Co.  v.  HOLTBE.       [Jan.  T., 

court,  by  a  parity  of  reasoning,  would  not  per  se  operate 
as  a  supersedeas,  or  stay  of  the  remittitur  and  mandate, 
and  not  without  a  similar  order. 

And  in  this  case  it  appears  that  the  argument  on  the 
motion  was,  on  the  application  of  the  defendants  them- 
selves, continued,  and  then  only  on  the  express  condition 
that  it  should  not  operate  as  a  stay  of  proceedings. 

And  this  court  having  the  right  to  prescribe  the  terms 
upon  which  such  orders  are  made,  and  the  continuance 
being  allowed  at  defendants'  own  instance  and  request,  they 
could  not  avail  themselves  of  the  favor  and  afterward  repu- 
diate the  terms  upon  which  it  was  granted. 

But  if  it  had  operated  as  a  supersedeas,  the  defendants 
have  not  saved,  but,  by  their  laches,  waived  the  error. 

Their  remedy,  in  that  event,  would  have  been  by  applica- 
tion to  the  justices  of  the  supreme  court,  who,  in  vacation 
as  in  term  time,  have  authority  over  the  writs  of  this  court, 
and  could  have  recalled  the  mandate  and  remittitur,  or 
stayed  the  same  till  a  rehearing  could  have  been  had. 

A  rehearing  will  not  be  granted  in  an  equity  cause,  after 
it  has  been  remitted  to  the  court  below,  to  carry  into  effect 
the  decree  of  the  court  above,  according  to  its  mandate. 
And  a  subsequent  appeal  for  supposed  error  in  carrying 
into  ^ftect  such  mandate,  brings  up  only  the  proceedings 
after  the  mandate.  5  Curtis'  U.  S.  Sap.  Ct.  Decis.  220. 

In  this  case,  there  being  a  positive  direction,  on  tiling  and 
continuing  the  motion  for  a  rehearing,  that  it  should  not 
stay  proceedings,  the  remittitur  and  mandate  were  regu- 
larly and  properly  issued. 

The  mandate  was  the  imperative  command  of  a  supervis 
ory  to  a  subordinate  court. 

The  court  below  was  powerless  to  disobey. 

Disobedience  would  have  beeD  error,  and,  if  admitted,  the 
authority  of  this  tribunal  as  a  supreme  and  supervisory 
court  would  be  annihilated. 

If  afterward,  however,  on  motion  for  a  rehearing,  this 
court  should  reverse  its  former  decision,  which  would 
rarely,  if  ever,  be  done,  except  upon  some  question  deci- 


1872.]  CAROTHERS  ».  CONNOLLY.  433 

sive  of  the  case,  duly  submitted  by  counsel,  but  overlooked 
by  the  court,  or  the  fact  that  the  decision  was  in  conflict 
with  an  express  statute  or  a  controlling  decision,  to  which 
the  attention  of  the  court  had  not  been  directed,  all  decrees 
in  pursuance  thereof  would,  as  a  natural  consequence,  fall 
with  the  decision,  the  authority  under  which  they  were  made. 

And,  in  that  event,  defendants  would  at  least  have  their 
remedy  by  action  to  recover  back  the  money  collected  under 
the  same. 

Therefore  we  hold,  that  the  motion  for  a  rehearing  did  not 
operate  as  a  supersedeas,  and  that  the  court  below  com- 
mitted no  error  in  entering  the  decree  in  conformity  to  the 
remittitur  and  mandate  from  the  court  above. 

The  action  of  the  court  below  in  carrying  into  effect  the 
judgment  of  the  supervisory  court  is  sustained,  and  the 
decree  affirmed. 

Judgment  affirmed. 


CAROTHERS,  respondent,  v.  CONNOLLY,  appellant. 

STATUTE  OF  FRAUDS — verbal  promise  to  pay  debt  of  another.  The  verbal  prom- 
ise of  a  party,  who  has  a  claim  against  a  ditch,  to  pay  the  lien  of  another 
against  the  ditch,  is  not  within  the  statute  of  frauds,  and  may  be  enforced 
in  law,  if  the  main  purpose  of  the  promise  is  to  protect  the  private  inter- 
ests of  the  promisor,  and  the  other  party,  in  consequence  of  this  promise, 
gives  up  his  lien  on  the  property  and  fails  to  sue  and  collect  his  debt. 

Appeal  from  the  Second  District,  Deer  Lodge  County. 

THIS  action  was  tried  in  May,  1871,  by  a  jury,  who  re- 
turned a  verdict  for  Carothers,  and  the  court,  KNOWLES,  J., 
entered  judgment  against  Connolly. 

The  facts  appear  in  the  opinion. 

The  statute  of  the  Territory,  relating  to  the  action,  is  as 
follows:  "In  the  following  cases,  any  agreement  shall  be 
void  unless  such  agreement,  or  some  note  or  memorandum 
thereof,  expressing  the  consideration,  be  in  writing,  and 
subscribed  by  the  party  charged  thereunto  :  First.  Every 
agreement  that  by  tbe  terms  is  not  to  be  performed  within 

VOL.  I.— 55. 


434  CAROTHERS  c.  COXNOJJA.  [Jan.  T., 

one  year  from  the  making  thereof.  Second.  Every  special 
promise  to  answer  for  the  debt,  or  default  or  miscarriage  of 
another." 

SHARP  &  NAPTON,  for  appellant. 

The  only  question  at  issue  in  this  case  is,  whether  or  not 
there  was  such  a  promise  made  by  appellant  to  respondent, 
as  to  take  it  out  of  the  statute  of  frauds.  Appellant  main- 
tains that  there  was  not.  What  consideration  was  there  for 
appellant's  promise,  if  the  foreclosure  of  respondent's  lien 
would  not  injure  him  2 

The  burden  of  proving  a  valid  legal  promise  is  upon  the 
respondent.  That  he  failed  to  do,  so  long  as  there  was  no 
benefit  gained  by  appellant  in  having  the  lien  forfeited. 
There  was  none,  because  only  two  members  of  the  firm  sign 
the  deed  to  Connolly  &  Stuart,  and  consequently  their  lien 
was  only  on  a  portion  of  the  property,  and  they  could  have 
compelled  the  respondent  to  satisfy  his  lien  out  of  the  bal- 
ance of  the  property.  If  this  promise  had  been  reduced  to 
writing  the  consideration  would  have  been  sufficient  for  a 
guaranty.  2  Pars,  on  Cont.  9-11. 

J.  C.  RoBiisrsoisr,  for  respondent. 

Appellant's  promise  is  taken  out  of  the  statute  of  frauds. 
He  was  benefited  and  respondent  injured  by  it,  either  of 
which  would  support  the  promise.  1  Pars,  on  Cont.  366-369  ; 
2  id.  306.  Appellant  had  an  interest  in  the  ditch  when  he 
made  the  promise.  3  Pars,  on  Cont.  25. 

WADE,  C.  J.  This  suit  is  brought  on  an  alleged  promise 
by  defendant  to  pay  a  debt  of  the  plaintiff  against  the  Key 
Stone  Ditch  Company,  and  it  is  claimed  by  defendant  that 
this  promise  being  a  verbal  promise  to  pay  the  debt  of 
another  is  within  the  statute  of  frauds  and  therefore  void. 

The  pleadings  and  the  evidence  in  this  case  show  sub- 
stantially this  state  of  facts.  In  the  month  of  December, 
1871,  the  Key  Stone  Ditch  Company  were  indebted  to  the 
plaintiff  and  two  other  persons,  doing  business  under  the 
name  and  style  of  Carothers  &  Co.,  in  the  sum  of  $151.50, 
for  lumber,  before  that  time  delivered  to  the  ditch  company 


1872.]  CAKOTHKKS  ».  CONNOLLY.  43fi 

at  their  special  instance  and  request ;  that  to  secure  the  pay- 
ment of  this  indebtedness  Carothers  &  Co.  filed  a  lien  upon 
the  ditch  property  on  the  9th  day  of  December,  1867 ;  that 
in  the  year  1868  Carothers  &  Co.,  for  a  valuable  considera- 
tion, assigned  and  delivered  to  the  plaintiff  their  interest  in 
said  debt  and  lien  ;  that  prior  to  the  1st  day  of  June,  1868, 
the  defendant,  Connolly,  became  the  owner  of  the  ditch 
property,  or  at  least  that  he  became  the  owner  of  a  claim 
against  the  same  in  the  sum  of  more  than  $5,000,  and  that 
while  the  defendant  was  so  the  owner  of  said  property,  or 
the  owner  of  said  claim  against  the  same,  in  consideration 
that  said  plaintiff  would  give  up,  release  and  forfeit  to  said 
defendant  his  said  lien  upon  said  property,  and  that  plain- 
tiff would  forbear  to  sue  and  foreclose  the  same,  he,  the  de- 
fondant,  then  undertook  and  promised  to  pay  plaintiff  said 
debt  and  demand  of  $151.50,  and  that,  in  pursuance  of  said 
agreement  of  the  defendant,  the  plaintiff  did  give  :ip  said 
lien,  and  did  release  the  same  to  the  defendant,  and  did  for- 
bear to  sue  and  collect  the  same  out  of  said  property,  and 
thereby  lost  his  lien  and  claim  against  said  property,  and 
that  his  debt  remains  due  and  unpaid. 

The  testimony  also  shows  that  the  defendant,  being  the 
owner  of  said  claim  against  said  property,  was  interested 
in  having  the  other  demands  against  said  property  paid  off 
and  canceled,  and  that  for  this  purpose,  and,  further,  to 
secure  his  own  debt  against  said  property,  he  had  paid  the 
claim  of  one  Yolbrecht  and  of  one  Stephens  thereon,  arid 
has  taken  a  conveyance  or  assignment  of  said  claims  to 
himself. 

Being  thus  interested  in  the  ditch  property  to  the  extent 
of  his  claim  or  demand  against  the  same,  lie  makes  the 
promise  to  the  plaintiff  as  above  set  forth. 

Is  this  promise,  so  made,  within  the  statute  of  frauds,  and 
void '( 

It  is  obvious  from  the  situation  of  the  parties  and  the 
property  in  question,  at  the  time  this  promise  was  made, 
that  the  enforcement  of  the  lien  of  the  plaintiff,  and  the 
collection  ot'liisdebt  out  of  this  rouM-t.  would  so  far.  and 


436  CAROTHERS  v.  CONNOLLY.  [Jan.  T.> 

to  the  extent  of  the  plaintiff's  claim,  have  decreased  and 
lessened  the  security  of  the  defendant's  debt,  so  that  his 
promise  and  agreement  to  pay  the  debt  of  the  plaintiff  was 
a  promise  made  for  his  own  interest  and  for  his  own  benefit, 
and  to  prevent  a  sacrifice  of  the  property,  by  a  forced  sale, 
upon  proceedings  to  foreclose  plaintiff's  lien.  The  promise 
and  undertaking  of  the  defendant,  therefore,  was  not  for  the 
benefit  of  the  plaintiff.  The  plaintiff's  debt  was  secure  be 
yond  question,  and  this  promise  of  the  defendant  was  purely 
and  solely  for  his  own  accommodation.  It  was  made  to 
further  secure  the  defendant,  and  to  place  the  ditch  prop- 
erty under  his  sole  control. 

It  was  a  promise  to  pay  the  debt  of  another,  and  not  in 
writing,  but  the  leading  object  of  the  promisor  was  to  sub- 
serve and  promote  some  interest  or  purpose  of  his  own. 
Such  a  promise  is  not  within  the  statute  of  frauds.  The 
statute  is  designed  to  prevent  frauds  and  perjuries,  and  not 
to  engender  them,  and  it  would  outrage  every  principle  of 
justice  and  fair  dealing  to  permit  any  defendant  to  escape 
the  consequences  of  his  promise,  made  to  further  his  own 
interests,  ends  and  purposes. 

Wherever  the  main  purpose  and  object  of  the  promise  is 
not  to  answer  for  another,  but  to  subserve  some  purpose  of 
his  own,  his  promise  is  not  within  the  statute,  although  it 
may  be  in  form  a  promise  to  pay  the  debt  of  another,  and 
although  the  performance  of  it  may  incidentally  have  the 
effect  of  extinguishing  the  liability  of  another. 

If  a  creditor  has  a  lien  upon  certain  property  of  his  debtor 
to  the  amount  of  his  debt,  and  a  third  person,  who  also  has 
an  interest  in  the  same  property,  promises  the  creditor  to 
pay  the  debt,  in  consideration  of  the  creditor  relinquishing 
his  lien,  this  promise  is  not  within  the  statute.  3  Pars,  on 
Cont.,  §§  24, 25  ;  Nelson  v.  Boynton,  3  Mete.  396  ;  Williams 
v.  Leper,  3  Burr.  1886  ;  Alger  v.  Seville,  I  Gray,  391. 

The  judgment  in  the  court  below  is  affirmed. 

Judgment  affirmed. 


1872.]  ISAACS  v.  MCANDREW.  437 


ISAACS,  respondent,  v.  MOANDKEW  et  al.,  appellants. 

SERVICES — special  contract — absence  of  employee.  A  servant,  who  is  employed 
under  a  contract  for  a  certain  time,  at  a  fixed  price,  cannot  recover  on  the 
contract  for  the  services  he  has  rendered,  if  he  has  left  or  been  compelled 
to  leave  his  employers  through  their  conduct,  before  the  stipulated  time 
expires. 

SERVICES  —  effect  of  special  contract — time  of  service.  A  party,  who  is  employed 
under  a  written  contract,  as  a  superintendent  of  mines  for  five  years,  at  a 
salary  of  $4,000  per  year,  but  in  which  no  time  for  its  payment  is  fixed,  must 
perform  services  for  the  period  of  five  years,  before  he  can  bring  an  action 
for  any  part  of  his  salary. 

SERVICES — time  of  payment  —  salary.  If  a  written  contract  does  not  fix  the 
time  for  the  payment  of  a  salary  to  a  servant,  who  is  to  work  for  five  years, 
at  a  certain  salary  per  year,  the  law  will  establish  such  time  at  the  end  of 
the  five  years. 

SBBVICES —  entire  contract — remedies — party  prevented  from  performing  con- 
tract. A  party  who  is  prevented  from  performing  an  entire  contract  by  the 
other  party  has  three  remedies ;  he  may  keep  himself  ready,  willing  and 
able  to  perform  the  contract  until  it  expires,  and  then  sue  on  the  contract, 
or  sue  upon  the  quantum  meruit  for  what  his  services  are  actually  worth,  or 
sue  for  damages  for  breach  of  the  contract  by  the  other  party. 

CONTRACT  —  charge  on  business — personal  liabiliti/.  An  agreement  that  the 
traveling  and  living  expenses  of  a  superintendent  of  mines  shall  be  a  charge 
to  and  borne  by  the  joint  property  and  business,  makes  them  liens  upon 
such  property  and  business,  but  does  not  create  any  personal  liability  until 
the  remedy  against  the  property  has  been  exhausted. 

STATUTORY  CONSTRUCTION  —  act  prescribing  the  rate  of  interest  Interest  is  a 
creature  of  the  statute ;  and,  under  the  laws  of  this  Territory,  the  payment 
of  interest  for  money  paid,  laid  out  and  expended  for  another,  cannot  be 
enforced  unless  it  is  averred  and  proved  that  there  has  been  unresonable 
and  vexatious  delay. 

PRACTICE  —finding  by  the  jury  set  aside  —  services.  A  finding  by  the  jury,  that 
a  party  has  performed  services  for  one  year,  under  a  contract  requiring  him 
to  superintend  mines  in  this  Territory,  will  be  set  aside,  if  the  evidence 
shows  that  he  left  the  Territory  before  the  year  expired. 

CONTRACT  FOR  MONTANA  CURRENCY  CONSTRUED  —  salary  for  services.  Under 
a  contract,  which  provides  that  a  salary  for  services  shall  be  at  the  rate  of 
$4,000  a  year,  in  Montana  currency,  allowing  greenbacks  to  be  worth  90  cents 
of  the  dollar  of  said  currency,  the  amount  of  such  salary  is  $4,000  per  year. 

CONTRACT  —  place  of  performance  and  demand.  Under  a  contract  that  is  made 
in  New  York  to  be  performed  in  Montana,  in  which  the  place  of  payment 
for  services  is  not  fixed,  a  demand  for  payment  must  be  made  in  New  York, 
if  the  employers  have  their  domicile  there. 

CONTRACT  —  rate  of  interest  after  demand  for  payment  for  services.  In  an  action 
to  recover  for  services  performed  in  Montana,  under  a  contract  made  in 
New  York,  which  does  not  fix  the  rate  of  interest,  if  the  payment  for  ser- 
vices is  refused  after  a  demand  therefor  in  New  York,  the  rate  o*  interest 
would  be  that  prescribed  by  the  laws  of  this  Territory. 


438  ISAACS  v.  MCAXDREW.  [Jan.  T.. 

HTTSBAND  AND  WIFE — void  contract  and  judgment.  A  contract  by  which  a 
party  agrees  to  perform  services  for  three  persons,  one  of  whom  is  his  wife, 
and  a  judgment  obtained  thereon,  are  void  at  common  law  as  between  the 
husband  and  his  wife. 

PRACTICE  —  withdrawal  of  counter-claim.  It  is  not  error  for  the  court  to  re- 
fuse to  allow  a  party  to  withdraw  his  counter-claim,  after  the  testimony  has 
been  closed  aud  while  the  court  is  instructing  the  jury,  unless  manifest 
injustice  would  result  to  the  rights  of  the  parties. 

Appeal  from  the  First  District.  Madison  County. 

THIS  action  was  tried  in  November,  1869,  by  a  jury,  who 
returned  a  general  verdict  for  Isaacs,  on  which  the  court, 
WARREN,  J.,  rendered  judgment. 

Isaacs  was  restrained  by  an  order  of  the  court,  in  a  suit 
in  which  McAndrew  and  another  were  the  plaintiffs,  from 
acting  as  superintendent  of  mines  under  the  contract  set 
forth  in  the  opinion,  from  January  7,  1868,  to  September, 
1868.  It  appeared  from  the  evidence  that  the  contract  had 
never  been  dissolved  or  canceled  by  the  parties  ;  and  that 
Isaacs  testified  that  he  notified  Me  Andrew  in  New  York 
city,  in  April,  1868,  that  he  had  come  there  to  make  a  set- 
tlement with  appellants,  at  the  request  of  their  agent  in 
Montana,  and  that  McAndrew  then  said  that  no  person  had 
any  authority  to  so  notify  him  to  appear. 

The  other  facts  appear  in  the  opinion. 

VV.  F.  SANDERS,  for  appellants. 

Respondent  could  not  claim  over  $4,000  per  annum,  with 
interest,  as  damages.  The  agreement  to  pay  $4,000  limits 
the  sum  to  that  amount,  but  the  judgment  could  not  be  for 
dollars  in  '•  Montana  currency." 

There  was  no  agreement  to  pay  until  the  close  of  the  term 
of  service,  February  2,  1872.  No  liability  had  accrued 
under  the  first  cause  of  action  when  judgment  was  rendered. 
No  interest  could  be  claimed  under  the  statute.  Acts  1865, 
535.  There  was  no  allegation  that  these  moneys  were  with- 
held by  an  unreasonable  or  vexatious  delay. 

The  liability  of  appellants,  under  the  second  and  third 
causes  of  action  rests  upon  the  last  clause  of  appellant's  let- 
ter of  Man-h  9.  1867.  This  clause  was  nudu'ni  pactum.  It 


1872.]  ISAACS  v.  McAxDBEW.  430 

was  an  offer  to  give,  which  could  not  be  enforced  as  a  legal 
liability.  It  was  an  offer  to  make  the  expenses  a  charge 
on  the  property  and  business,  and  created  no  personal  lia- 
bility. The  only  method  of  enforcing  them  would  be  by 
proceedings  in  equity  to  subject  the  property  to  their  pay- 
ment. 

Respondent  was  discharged  :  whether  for  good  cause 
or  no  makes  no  difference.  He  was  discharged  three 
months  before  the  year  expired.  The  jury  found  he  was 
working  in  Montana  under  the  contract,  while  he  was  actu- 
ally in  New  York.  The  jury  did  not  find  that  respondent 
was  able  to  perform  his  part  of  the  contract.  Respondent 
went  to  New  York  by  no  one's  authority. 

There  should  have  been  a  demand  for  currency,  and  a 
refusal  to  pay  it.  There  should  have  been  an  allegation  of 
acceptance  by  respondent  of  the  proposition  in  the  letter  of 
March  9,  1867. 

The  stipulation,  that  respondent  was  to  be  paid  at  a  cer- 
tain rate  per  year,  is  not  an  agreement  that  the  salary  shall 
be  paid  at  the  end  of  the  year.  Davis  v.  Maxwell,  12  Mete. 
289  ;  McMillan  v.  VanderUp,  12  Johns.  165  ;  Jennings  v. 
Camp,  13  id.  94 ;  Reab  v.  Moor,  19  id.  337.  Respondent 
could  riot  collect  any  thing  on  the  contract  until,  by  its 
terms,  the  time  had  expired.  He  could  sue  for  damages  for 
refusing  to  employ,  and  not  for  wages  before  they  became 
due. 

The  moneys  named  in  the  second  and  third  causes  of 
action  were  not  paid  at  the  instance  or  request  of  appellants. 

Respondent  neglected  his  duty  and  violated  the  orders  of 
his  employers  and  his  contract  of  service.  He  was  on  the 
Missouri  river  one  month,  and  neglected  the  business  of  his 
employers.  Respondent  could  not  delegate  to  another  a 
personal  trust.  Respondent  removed  appellants'  mill  with- 
out authority,  and  squandered  appellants'  money  in  an  un- 
tested and  unimproved  district.  Respondent  brought  suits 
in  names  of  appellants  against  their  wishes.  Respondent's 
letters  and  reports  to  appellants  show  incompetency,  decep- 
tion and  fraud. 


*40  ISAACS  v.  Mo  ANDREW.  [Jan.  T., 

The  court  erred  in  refusing  to  allow  appellants  to  with- 
draw their  counter-claim.  The  court  erred  in  refusing  to 
instruct  the  jury  that  respondent  must  prove  that  he  per- 
formed work  for  the  whole  year  in  order  to  recover. 

Respondent  was  obliged  to  demand  his  pay  in  New  York 
before  appellants  would  be  liable.  The  Montana  currency 
was  deliverable  in  New  York,  and  an  averment  of  demand 
there  was  essential.  2  Pars,  on  Cont.  583.  Nothing  was 
due  respondent  until  February  2,  1872,  or  April  1,  1872. 

The  court  erred  in  refusing  to  instruct  the  jury  as  to  what 
constitutes  negligence,  and  put  a  wrong  construction  on  the 
letter  of  March  9.  1867.  Brown  v.  Huger,  21  How.  Pr.  305  ; 
Hilliard's  New  Trials,  250.  The  court  refused  to  charge 
that  desertion  by  respondent  of  appellants'  business  was 
cause  for  discharge.  Zabriskie  v.  Smith,  13  N.  Y.  338. 

G.  G.  SYMES,  S.  WORD  and  H.  N.  BLAKE,  for  respondent. 

Respondent  testified  that  he  worked  as  superintendent 
for  appellants  from  April  1,  1867,  to  April  1,  1868  ;  that  he 
was  to  receive  the  salary  mentioned  in  the  letter  of  March  9, 
1867,  and  expenses  from  New  York  to  Montana,  arid  living 
expenses  in  Montana  ;  and  that  he  worked  faithfully  for 
appellants.  This  evidence  was  not  disputed  by  appellants. 

This  appeal  is  taken  from  an  order  overruling  a  motion 
for  a  new  trial.  There  was  no  statement  on  the  motion  for 
a  new  trial,  but  the  bill  of  exceptions  contained  a  portion 
of  the  evidence.  There  being  no  such  statement  as  the 
statute  requires,  this  court  cannot  reverse  the  order  over- 
ruling the  motion  for  a  new  trial  on  the  ground  that  the 
evidence  is  insufficient  to  support  the  verdict.  Civ.  Prac. 
Act,  §  194.  The  weight  of  all  the  evidence  in  the  exceptions 
is  in  favor  of  respondent.  There  is  a  conflict  of  evidence, 
and  the  court  will  not  reverse  the  judgment  or  disturb  the 
verdict.  Oullahan  v.  Starbuck,  21  Cal.  413 ;  Wilcoxson 
v.  Burton,  27  id.  232  ;  Wilkinson  v.  Parrott,  32  id.  102. 

The  only  questions  to  be  considered  are  the  rulings  of  the 
court  during  the  trial.  The  letter  of  March  9,  1867,  was 
properly  admitted  in  evidence.  It  h'xed  the  salary  of  re- 


1872.]  ISAA  ;s  v.  McANDREW.  441 

spondent,  and  related  to  the  issues  tried  by  the  jury.  It 
shows  that  certain  expenses  of  respondent  were  to  be  borne 
by  appellants. 

The  refusal  of  the  court  to  allow  appellants  to  withdraw 
their  counter-claim  was  not  error.  It  is  the  intention  of  the 
law  that  accounts  between  litigants  shall  be  settled  in  the 
same  suit.  If  parties  insist  on  a  counter-claim  during  the 
trial,  they  should  not  be  allowed  to  withdraw  it  while  the 
court  is  charging  the  jury. 

The  instructions  of  the  court  were  applicable  to  the  issues 
formed  by  the  pleadings  and  the  points  relied  on  by  appel- 
lants. They  fully  present  the  appellant's  side  of  the  case. 
Some  of  appellant's  instructions,  that  were  refused,  had 
been  given  in  substance  by  the  court.  It  is  the  duty  of  a 
court  to  give  the  law  applicable  to  a  case  in  plain,  not  argu 
mentative,  instructions,  so  that  the  jury  will  not  be  con 
fused. 

It  was  not  necessary  for  respondent  to  work  during  the 
whole  year  to  recover.  Appellants  prevented  him  from 
working  a  portion  of  the  time,  but  he  was  ready  and  wil- 
ling to  perform  services  under  the  contract.  Before  respond- 
ent went  to  New  York,  W.  D.  Wann,  agent  of  appellants, 
told  him  he  would  have  to  go  to  get  a  settlement. 

Could  the  expenses  referred  to  in  the  letter  of  March  9, 
1867,  be  made  a  lien  on  the  property  of  appellants  and  en- 
forced against  it?  It  cannot  be  claimed  that  appellants  are 
not  personally  liable,  unless  there  was  an  express  contract 
that  respondent's  expenses  should  not  be  a  personal  liabil- 
ity. Tafts  v.  Plymouth  M.  Co.,  14  Allen  (Mass.),  407. 

The  issues  of  the  performance  of  services  by  respondent, 
the  reasons  for  his  discharge,  his  competency,  his  obedience 
of  appellants'  instructions,  etc.,  were  decided  in  favor  of 
respondent  by  the  jury,  under  the  instructions  of  the  court 
below. 

Respondent  was  to  receive  $4,000  per  year.  This  was 
payable  at  the  end  of  each  year.  The  commencement  of 
this  suit  was  a  sufficient  demand. 

The  letters  of  respondent  to  appellants  show  that  respond- 
VOL.  I.— 56. 


442  ISAACS  v.  MCANDREW.  [Jan.  T., 

ent   was    very  particular  and  thorough  in  his  reports  of 
every  thing  he  did. 

There  are  no  specifications  of  the  particular  errors  on 
which  appellants  rely  in  any  part  of  the  transcript.  The 
whole  record  shows  that  the  law  was  substantially  given  to 
the  jury  ;  that  no  exceptions  were  taken  which  would  have 
changed  the  result ;  and  there  may  be  a  conflict  of  evidence. 
The  judgment  should  not  be  disturbed.  Smith  v.  Harper, 
5  Gal.  329  ;  Dale  v.  Anderson,  27  id.  250  ;  Kile  v.  Tubbs,  32 
id.  333. 

W.  F.  SANDERS,  for  appellants,  in  reply. 

The  letter  of  March  9,  1867,  shows  that  certain  expenses 
were  to  be  borne  by  the  joint  property  and  business,  and 
not  by  appellants.  The  letter,  like  a  mortgage,  makes  a 
debt  a  charge  on  property,  but  creates  no  personal  liability. 

Respondent  must  show  that  he  made  truthful  reports  tc 
appellants  to  enable  him  to  recover.  It  was  a  part  of  re 
spondent's  contract  of  service. 

The  withdrawal  of  the  counter-claim  stands  on  the  same 
footing  as  the  right  of  a  party  to  dismiss  a  suit  where  then- 
is  DO  counter-claim,  and  this  can  be  done  before  the  court 
has  left  the  case  to  the  jury. 

Respondent  must  remain  at  or  near  the  business  before 
he  can  recover  wages  on  the  contract.  Respondent  cannot 
claim  the  discharge  was  valid,  and  leave,  and  then  claim 
that  the  discharge  was  a  nullity  and  sue  for  wages.  Vir- 
ginia &  T.  A.  Co.  v.  County  Commissioners  Lyon  Co.,  6 
Nev.  72. 

The  salary  was  not  $4,000  each  year,  or  a  year,  but  attht 
rate  of  $4,000  per  annum. 

The  errors  relied  on  were  properly  saved. 

WADE,  C.  J.  This  is  an  appeal  from  the  judgment  of 
the  court  below,  and  from  the  order  overruling  the  motion 
for  a  new  trial,  and  whatever  appears  in  the  bill  of  excep- 
tions, taken  at  the  trial  and  allowed  by  the  court,  is  prop- 
erly before  us  for  consideration  and  decision.  The  suit  is 
for  services  alleged  to  have  been  performed  by  plaintiff  for 


1872.]  ISAACS  v.  Me  ANDREW.  448 

defendants,  in  pursuance  of  the  terms  of  a  written  con- 
tract between  the  parties,  and  the  complaint  substantially 
alleges  :  That  in  the  months  of  February  and  March,  1867, 
the  plaintiff  was  employed  by  defendants  at  their  spe- 
cial instance  and  request,  as  general  manager  of  the  min- 
ing business  and  property  of  the  defendants  in  Mon- 
tana Territory,  for  the  period  of  five  years  from  the 
2d  day  of  February,  1867,  unless  the  agreement  entered 
into  between  the  plaintiff  and  defendants  should  be  sooner 
dissolved  or  canceled ;  that  on  the  9th  day  of  March,  1867, 
defendants  proposed  to  pay  plaintiff  for  his  services,  at  the 
rate  of  $4,000  per  year  in  Montana  currency,  allowing  green- 
backs to  be  wortli  90  cents  of  the  dollar,  commencing  on 
the  1st  day  of  April,  1867,  which  agreement  and  proposi- 
tion were  made  in  the  city  of  New  York,  and  accepted  and 
ratified  by  said  plaintiff  at  the  times  the  same  were  made  ; 
that  the  plaintiff,  being  employed  as  aforesaid,  took  charge 
of  the  ruining  business  and  property  of  said  defendants  in 
said  Territory,  as  general  manager  thereof,  in  the  month  of 
March,  1867,  and  that  he  continued  to  perform  the  service 
of  such  general  manager  from  that  date  until  the  1st  of 
April,  1868,  without  any  fault  or  omission  of  duty  on  his 
part ;  that  said  agreement  has  never  been  dissolved  or  can- 
celed ;  that  the  same  was  in  full  force  and  effect  from  the 
time  the  same  was  made  until  the  1st  day  of  April,  1868; 
that  the  value  of  said  $4,000  in  Montana  currency  was 
$4,444.44,  and  that  plaintiff  was  entitled  to  receive  that  sum 
for  his  services  aforesaid,  and  that  no  part  thereof  has  been 
paid,  although  the  same  was  demanded  of  defendants  in  the 
city  of  New  York,  in  the  month  of  April,  1868. 

The  second  cause  of  action  charges  defendants  with  the  sum 
of  $1,100,  for  so  much  money  paid,  laid  out  and  expended 
for  said  defendants  by  said  plaintiff,  and  to  and  for  the  use 
and  benefit  of  defendants,  and  at  their  special  instance  and 
request,  in  defraying  the  expense  of  plaintiff  and  his  wife 
in  getting  from  the  city  of  New  York  to  said  Territory. 

The  third  cause  of  action  charges  defendants  with  the 
sum  of  $600  for  so  much  money  paid,  laid  out  and  expended 


444  ISAACS  «.  Mo  ANDREW.  [Jan.  T., 

by  said  plaintiff  for  said  defendants,  at  their  special  instance 
and  request,  in  defraying  the  living  expenses  of  the  plaintiff 
in  said  Territory. 

The  fourth  cause  of  action  charges  defendants  with  the  sum 
of  $1,000  for  money  paid,  laid  out  and  expended  by  plain- 
tiff for  said  defendants,  at  their  special  instance  and  request, 
in  defraying  the  expense  of  plaintiff  in  going  from  this  Ter- 
ritory to  the  city  of  New  York,  and  returning  therefrom  to 
said  Territory. 

The  answer  of  the  defendants  denies  that  the  plaintiff,  in 
the  months  of  February  and  March,  1867,  or  at  any  other 
time,  was  employed  by  the  defendants  as  general  manager 
of  the  mining  business  and  property  of  the  defendants,  in 
the  Territory  of  Montana,  for  the  period  of  five  years,  or 
for  any  other  period,  than  from  the  1st  day  of  April,  1867, 
to  the  6th  day  of  January,  1868  ;  and  deny  that  plaintiff 
continued  to  perform  such  services,  or  any  service  for  de- 
fendants, after  said  6th  day  of  January,  1868 ;  deny  that 
plaintiff  complied  in  all  respects  with  contract,  without  any 
fault  or  omission  of  duty  on  his  part ;  but,  on  the  contrary, 
allege  that  plaintiff,  when  he  entered  upon  their  employ- 
ment as  aforesaid,  in  consideration  of  the  sum  agreed  to  be 
paid  to  him  for  said  services,  undertook  and  agreed  that  he 
was  competent  to  discharge  the  duties  of  general  manager 
and  superintendent  of  the  mining  business  and  property  of 
defendants  in  said  Territory  ;  that  he  would  devote  his 
entire  time  and  energies  in  the  discharge  of  such  duties ; 
obey  all  instructions  he  should  receive  from  defendants  in 
reference  to  said  business  ;  make  full  reports  from  time  to 
time  to  the  defendants  of  all  matters  affecting  their  interests 
in  and  about  said  business  ;  not  deceive  the  defendants  with 
reference  to  any  of  said  business  or  property.  But  alleges 
that  said  plaintiff,  while  so  employed  as  aforesaid,  was  not 
competent  to  discharge  the  duties  of  said  general  manager 
or  superintendent  of  said  mining  business  and  property ; 
did  not  devote  his  entire  time  or  energies  to  the  discharge 
of  the  duties  aforesaid  ;  did  not  obey  the  instructions  of  the 
defendants  with  reference  to  their  business  ;  did  not  make 


1872.]  ISAACS  t>.  Mo  ANDREW.  446 

full,  nor  truthful,  reports  of  said  business  to  said  defendants  ; 
deceived  defendants  with  reference  to  their  said  business 
and  property  ;  was  extravagant  in  the  expenditure  of  de- 
fendants' money  ;  insubordinate  to  their  instructions ;  made 
to  them  false  reports  in  and  about  their  said  business ; 
bought  other  mining  property  in  said  Territory  with  defend- 
ants' money  without  their  authority ;  and  would  not,  and 
did  not,  comply  with  said  contract  of  service.  Wherefore, 
the  defendants,  on  the  6th  day  of  January,  1868,  discharged 
plaintiff  from  said  service  and  employment ;  and  defend- 
ants aver  payment  of  $3,000  to  plaintiff  on  account  of  his 
services,  between  the  1st  day  of  April,  1867,  to  January 
1,  1868. 

The  answer  to  the  second,  third  and  fourth  causes  of 
action  is  a  general  denial,  and  in  further  answering  the  de- 
fendants set  up  a  counter-claim  against  the  plaintiff,  for  goods 
sold  and  delivered  to  plaintiff  at  his  special  instance  and 
request,  and  for  money  had  and  received  of  defendants,  and 
for  money  paid,  laid  out  and  expended  by  defendants  for 
plaintiff  at  his  instance  and  request,  and  demanding  judg- 
ment for  amount  of  counter-claim. 

The  reply  of  plaintiff  denies  that  he  undertook  or  agreed 
with  defendants  that  lie  was  competent  to  discharge  the 
duties  of  general  manager  or  superintendent  as  aforesaid  ; 
denies  that  he  agreed  to  obey  all  instructions  of  defendants 
in  reference  to  said  business,  and  denies  that  he  agreed  that 
he  would  not  deceive  defendants  about  said  business  and 
property.  Said  replication  also  denies  that  defendants  have 
paid  him  $3,000,  or  any  other  sum,  on  account  of  said  ser- 
vice, denies  that  he  was  ever  discharged  from  said  service, 
denies  counter-claim  and  all  the  averments  thereof,  and 
alleges  faithful  performance  of  his  duties  under  said  con- 
tract. 

The  plaintiff,  to  maintain  the  issues  on  his  part,  intro- 
duced and  read  in  evidence  the  following  contract : 

"CONTRACT." 

"  This  agreement  made  this  second  day  of  February,  in  the 
year  one  thousand  eight  hundred  and  sixty-seven,  between 


446  ISAACS  «.  Me  ANDREW.  [Jan.  TM 

Alexander  McAndrew  and  Samuel  Wann,  both  of  the 
town  of  Middletown  ,  in  the  county  of  Richmond  and  State 
of  New  York,  parties  of  the  first  part,  and  Maria  Josephine 
Isaacs,  wife  of  James  P.  Isaacs,  of  Montana  Territory, 
party  of  the  second  part,  and  said  James  P.  Isaacs,  party 
of  the  third  part. 

"Whereas,  the  parties  hereto  of  the  first  and  second 
parts  are  jointly  interested  in  certain  mining  property, 
mill  machinery  and  other  property,  particularly  described 
in  a  certain  deed  thereof  bearing  date  the  first  day  of  Febru- 
ary, one  thousand  eight  hundred  and  sixty-seven,  made  by 
said  parties  of  the  first  part  to  said  party  of  the  second 
part,  in  the  proportion  of  three-quarters  owned  by  said  par- 
ties of  the  first  part  and  one- quarter  owned  by  said  party 
of  the  second  part ;  and, 

"Whereas,  the  parties  of  the  first  part  have  advanced  all 
the  moneys  so  far  expended  in  purchasing  said  property, 
and  in  the  expenses  attendant  upon  and  connected  there- 
with, and  are  to  advance  such  further  sums  as  may  be 
needed  in  the  developing  and  working  of  said  property  ; 
and, 

' '  Whereas,  it  is  desired  and  intended  that  said  property 
shall  be  managed  and  worked  for  the  joint  account  as  one 
property,  and  that  the  party  of  the  third  part  shall  be  em- 
ployed as  general  manager  and  superintendent  of  the  same 
in  Montana  Territory : 

'••'  Now,  therefore,  this  agreement  witnesseth  :  That  the  par- 
ties hereto,  in  consideration  of  the  premises  and  of  the  mu- 
tual covenants  and  agreements  herein  contained,  have  mutu- 
ally agreed  and  covenanted,  and  by  these  presents  do  mu- 
tually agree  and  covenant,  each  with  the  other,  as  follows : 

"  First.  That  the  said  entire  property,  mines,  mining  inter- 
ests, mill,  machinery,  and  other  property  of  the  said  par- 
ties of  the  first  and  secon^.  parts,  shall  be  controlled  and 
managed  by  said  parties  of  the  first  part,  but  for  their  joint 
account  and  upon  the  terms  and  in  the  manner  hereafter 
provided  for.  and  to  that  end  the  said  party  of  the  second 
part  hath  made,  constituted  and  appointed,  and  by  these 


1872.  j  ISAACS  v.  McANDREW.  447 

presents  doth  make,  constitute  and  appoint  the  said  parties 
of  the  first  part  her  true  and  lawful  attorneys,  irrevocable 
during  the  continuance  of  this  agreement,  for  her  and  in  her 
name,  place  and  stead,  to  take  charge  of,  manage  and  con- 
trol her  interest  in  the  property  aforesaid  and  for  her  and 
in  her  name,  in  their  discretion  to  sell  such  portions  of  the 
property  as  they  may  deem  best,  and  good  and  sufficient 
deeds  therefor  to  execute,  acknowledge  and  deliver. 

"Second.  That  said  parties  of  the  first  part  shall  make 
all  advances  needful  and  requisite  for  the  further  working 
or  developing  of  the  said  property,  as  in  their  judgment 
shall  be  most  expedient. 

u  Third.  That  all  the  avails,  earnings  and  profits  derived 
from  the  said  property,  or  any  part  thereof,  shall  be  received 
by  the  said  parties  of  the  first  part,  and  shall  be  by  them 
applied  as  follows  : 

"  1.  To  the  re-imbursement  of  all  moneys  which  may 
be  expended  by  them  the  said  parties  of  the  first  part 
in  or  about  the  care,  management,  developing  or  work- 
Ing  of  said  property,  or  in  any  expenses  connected 
therewith. 

"'  2.  After  payment  of  all  expenses  as  above,  one- 
quarter  of  all  net  profits  resulting  from  the  working  of 
said  property,  or  sales  of  any  part  or  parts  thereof, 
shall  be  credited  and  paid  to  said  party  of  the  second 
part,  and  three-fourths  part  shall  be  credited  to  and 
retained  by  the  said  parties  of  the  first  part. 

Fourth.  That  the  said  party  of  the  third  part  shall  be 
employed  as  general  manager  of  the  said  mining  business 
and  property  of  said  parties  of  the  first  and  second  parts, 
in  Montana  Territory,  during  the  continuance  of  this  agree- 
ment, at  a  salary  to  be  agreed  upon  between  him  and  the 
said  parties  of  the  first  part,  which  salary  is  to  be  paid  as 
part  of  the  business  expenses  connected  with  said  joint 
property  and  business. 

'•  Fifth.  That  said  party  of  the  third  part  shall  and  will, 
during  the  continuance  of  this  agreement,  faithfully  devote 


448  ISAACS  ?>.  Me  ANDREW.  [Jan.  T., 

his  entire  time  and  energies  to  the  management  of  said  joint 
property  and  interest,  and  the  conduct  of  the  said  business 
of  mining,  and  to  the  promotion  of,  and  care  for,  the  joint 
interest  of  said  parties  of  the  first  and  second  parts. 

"  Sixth.  That  this  agreement  is  to  remain  in  full  force 
for  five  years  from  the  date  thereof,  unless  sooner  dis- 
solved or  canceled  by  the  parties  thereto,  and  that  the 
terms  hereof  are  to  bind  the  legal  representatives  of  said 
parties  of  the  first  and  second  parts,  as  well  as  said 
parties. 

"  Seventh.  That  during  the  continuance  of  this  agree- 
ment, the  parties  of  the  first  and  second  parts  shall  not, 
and  will  not  sell,  dispose  of,  transfer,  assign  or  convey 
their,  or  any  of  their,  individual  interests  in  the  property 
aforesaid,  or  any  part  thereof,  but  that  all  sales,  or  other 
dispositions  of  said  property,  or  any  part  thereof,  shall  be 
for  the  joint  account  and  benefit  of  said  parties  of  the  first 
and  second  parts  in  the  proportion  of  three-fourths  to 
the  former  and  one-fourth  to  the  latter. 

"In  witness  whereof,  the  parties  of  these  presents  have 
hereunto  unchangeably  set  their  hands  and  seals 
the  day  and  year  first  above  written. 

"ALEXANDER  McANDEW,  [L.S.] 
"SAMUEL  WANN,  [L.S.] 

"M.  J.  ISAACS,  [L.S.] 

"JAMES  P.  ISAACS.  [L.S.] 

"  Sealed  and  delivered  in  presence  of 
"CHARLES  NETTLETON. 
"M.  GRAHAM. 

[Stamp.] 

Which  agreement  is  properly  acknowledged  before 
Charles  Nettleton,  Commissioner  for  the  Territory  of 
Montana  in  New  York. 

Also  a  letter  from  defendants  to  plaintiff,  fixing  the  rate 
of  compensation  to  plaintiff  under  said  contract,  of  which 
tie  following  is  a  copy : 


1872.]  ISAACS  v.  MCANDREW.  449 

1  'No.  12  PINE  STREET,      ) 
"NE\v  YORK,  March  9,  1867.  J 

"J.  P.  ISAACS,  Esq.,  New  York: 

"DEAR  SIR  —  In  accordance  with  agreement,  dated  Feb- 
ruary 2,  1867,  executed  between  you,  Mrs.  Isaacs,  and  our- 
selves, we  propose,  in  behalf  of  all  parties  interested  in  the 
Montana  mining  property,  that  you  should,  on  your  arrival 
out,  take  charge  of  the  mining  business  and  of  said  prop- 
erty as  general  manager,  and  that  your  salary  for  services 
to  be  rendered  in  that  capacity  shall  be  at  the  rate  of  four 
thousand  dollars  ($4,000)  a  year  in  Montana  currency, 
allowing  greenbacks  to  be  worth  90  cents  of  the  dollar  of 
said  currency,  such  salary  to  date  from  the  first  day  of 
April  next. 

'"The  expenses  of  yourself  and  wife  in  getting  out  thti'e 
to  be  charged  to,  and  be  borne  by,  the  joint  property  and 
business,  and  your  living  expenses  there  to  be  in  like  man- 
ner a  charge  on  the  business. 

"Very  respectfully, 

"McANDREW  &  WANN." 

This  suit  was  commenced  on  the  15th  day  of  May,  1869. 
The  contract  under  which  the  plaintiff  claims  pay  for  one 
year's  service  is  dated  February  2,  1867,  the  alleged  year's 
service  ending  April  1,  1808.  It  will  be  seen  that  this  con- 
tract, by  the  terms  thereof,  is  to  continue  in  force  for  five 
years,  unless  sooner  dissolved  or  canceled  by  the  parties 
thereto.  This  suit  was  commenced  long  before  the  contract 
had  expired,  and  long  before  there  was,  or  could  have  been, 
a  performance  thereof  by  the  plaintiff,  providing  the  con- 
tract, by  its  terms,  was  an  entire  contract.  If  the  contract 
is  entire  in  its  nature,  full  performance  thereof  by  the  plain- 
tiff is  a  condition  precedent  to  his  right  to  sue  thereon. 
And  if  performance  by  the  plaintiff  is  prevented  or  made 
impossible  by  the  action  of  the  defendants,  the  plaintiff  must, 
at  all  times  during  the  continuance  of  the  contract,  be  ready 
and  willing  to  perform  on  his  part,  and  he  must  not  place 
himself  in  such  a  situation  as  to  be  unable  to  perform. 
VOL.  I.— 57. 


450  ISAACS  ».  Mo  ANDREW.  [Jan.  T., 

If  the  contract  under  consideration  is  an  entire  contract, 
that  is,  if  full  performance  thereof  by  the  plaintiff  must  be 
averred  and  proven  before  any  right  of  recovery  follows, 
and  this  contract  was,  by  its  terms,  to  continue  for  five 
years,  then  it  could  not  be  contended  that  this  suit,  at  this 
time,  ought  to  be  maintained. 

There  are  three  remedies  upon  an  entire  contract,  where 
one  of  the  parties  is  prevented  from  performing  by  the 
action  of  the  other  party. 

First.  He  may  keep  himself  ready,  willing  and  able  to 
perform  until  the  contract,  by  its  terms,  expires,  and  then 
bring  suit  on  the  contract  itself. 

Second.  He  may  bring  suit  upon  the  quantum  meruit  for 
what  his  services  are  actually  worth. 

Third.  He  may  sue  for  damages  for  breach  of  the  con- 
tract by  the  opposite  party. 

In  the  present  case  the  plaintiff  has  chosen  to  bring  his 
action  upon  the  contract,  claiming  pay  for  one  year's  ser- 
vice, and  the  right  to  bring  this  action  in  this  form  leads  us 
to  a  consideration  of  the  contract  in  question  to  ascertain 
whether  it  is  entire  or  divisible  in  its  character. 

The  contract  provides  that  the  plaintiff  shall  be  engaged 
as  general  manager  of  the  mining  business  of  defendants 
during  the  continuance  of  the  agreement  (five  years),  at  a 
salary  to  be  agreed  upon  between  the  parties,  to  be  paid  as 
part  of  the  business  expenses  connected  with  said  property. 

The  letter  above  referred  to,  which  forms  a  part  of  the 
agreement  and  contract,  provides  that  the  plaintiff's  salary 
for  services  to  be  rendered  under  said  contract  shall  be  at 
the  rate  of  four  thousand  dollars  a  year. 

The  contract  does  not  provide  when  the  plaintiff  shall 
receive  any  pay  for  his  services  ;  and  this  important  propo- 
sition, upon  which  this  case  hinges,  can  only  be  satisfac- 
torily solved  and  determined  by  a  resort  to  the  authorities. 

•  •  If  the  contract  be  for  a  time  certain  and  the  servant  leave 
without  cause  before  the  time  expires,  it  has  been  held  in 
many  cases  in  England  and  in  this  country,  that  lie  has  no 


1872.]  ISAACS  o.  Me  AN  DREW.  451 

claim  for  services  he  has  rendered."    2  Pars,  on  Cont.  36  ; 
Chit,  on  Cont.  629-633. 

"Nor  does  it  make  any  difference  in  this  respect  whether 
the  wages  are  estimated  at  a  gross  sum,  or  are  to  be  calcu- 
lated according  to  a  certain  rate  per  week  or  month,  or  are 
payable  at  certain  stipulated  times,  provided  the  servant 
agree  for  a  definite  and  whole  term ;  such  an  arrangement 
being  entirely  consistent  with  the  entirety  of  the  contract." 
Davis  v.  Maxwell,  12  Mete.  286  ;  Winn  v.  Southgate,  17  Vt. 
355. 

"In  regard  to  the  contract  itself  which  was  an  agreement 
to  work  for  the  defendant  for  seven  months  at  $12  per 
month,  we  are  of  opinion  it  was  an  entire  one,  and  that  the 
plaintiff  having  left  the  defendants'  service  before  the  time 
expired,  cannot  recover  for  the  partial  service  performed." 
12  Mete.  287  ;  HulcTiinson  v.  Wetmore,  2  Cal.  310. 

"The  stipulation  of  monthly  pay  does  not  disjoin  the 
contract,  it  is  adopted  only  as  the  means  of  ascertaining  the 
compensation."  McMillen  v.  Vanderlip,  12  Johns.  165  ; 
Ricev.  The  DwigTit  Man.  Co.,  2  Cush.  80. 

"Where  the  plaintiff  agreed  to  work  for  the  defendant 
lor  $104,  or  $13  per  month.  Held,  that  the  contract  was 
entire,  and  that  the  work  for  the  whole  period  was  a  condi- 
tion precedent  to  be  performed  before  the  plaintiff  could  sue 
for  his  hire."  Recif  v.  Moor,  19  Johns.  337  ;  LarTcin  v.  Burk, 
11  Ohio  St.  561  ;  Lantry  v.  Paries,  8  Cow.  63. 

These  cases,  and  numerous  others  that  might  be  cited,  seem 
to  settle  the  doctrine,  that  where  the  contract  is  for  a  time 
certain  at  a  fixed  price  per  day,  per  month,  or  year,  and  the 
servant  leaves  before  the  stipulated  time  expires,  he  has  no 
claim  on  the  contract  for  the  services  rendered. 

If  he  is  compelled  to  leave  the  service  by  the  action  of 
his  employer,  the  rule  is  not  changed.  He  must  then  resort 
to  a  suit  for  damages,  or  to  the  quantum  meruil  for  what 
his  services  are  actually  worth,  or  lie  may  stand  at  his  post 
ready  to  perform  until  the  contract  expires,  and  bring  his 
suit  on  the  contract. 

Applying  these  principles  lo  the  case  before  us,  and  its 


462  ISAACS  v.  MCANDREW.  [Jan.  T., 

solution  is  comparatively  easy  and  the  right  clear.  This 
was  a  contract  for  five  years'  service,  and  the  sum  to  be  paid 
therefor  was  fixed  at  the  rate  of  $4,000  per  year,  to  be  paid 
as  part  of  the  business  expenses  of  the  enterprise,  but  the 
time  of  payment  is  not  fixed,  and  in  view  of  the  authorities 
above  referred  to,  we  must  hold  that  this  is  an  entire  con- 
tract, and  that  work  for  the  whole  period  was  a  condition 
precedent  to  be  performed  by  the  plaintiff  before  he  could 
sue  for  his  hire. 

There  is  no  time  fixed  for  payment  in  this  contract,  and 
the  law  fixes  the  time,  and  that  time  is  the  period  when  the 
service  is  performed.  It  is  one  agreement,  one  contract,  and 
performance  must  be  shown  before  payment  can  be  enforced. 

We  cannot  make  contracts  for  parties,  and  however  con- 
venient pay  by  the  week,  month,  or  year  might  be,  such 
payments  cannot  be  enforced  unless  the  parties  so  promise 
and  agree. 

Suppose  A  contracts  with  B  to  labor  for  him  for  one  year 
at  the  rate  of  $1  per  day,  can  it  be  contended  that  at  the 
close  of  each  day's  service  A  has  the  right  to  bring  a  suit 
on  such  contract  to  enforce  payment  for  his  day's  labor? 
This  would  not  be  claimed,  and  yet  the  contract  under  con- 
sideration is  precisely  the  same  as  the  one  supposed,  only 
on  a  larger  scale. 

We  do  not  intend  to  say  that  the  plaintiff  in  the  present 
case  is  without  remedy  ;  we  only  say  he  has  mistaken  the 
form  of  action  he  should  have  brought.  If  he  has  been 
wrongfully  prevented  from  performing  his  contract  by  the 
defendants,  he  can  sue  for  damages,  and,  upon  the  quantum 
meruit,  for  the  value  of  the  labor  really  performed  ;  and 
at  the  end  of  the  five  years,  if  he  has  not  forfeited  his  right 
thereto,  he  may  bring  his  action  on  the  contract  for  his  ser- 
vices for  the  whole  period. 

II.  The  next  question  arising  in  the  case  is  as  to  the  suffi- 
ciency and  competency  of  the  evidence  to  support  the  sec- 
ond, third  and  fourth  counts  of  the  complaint.  These 
counts  allege  that  the  defendants  are  indebted  to  the  plain- 
tiff for  money  paid,  laid  out  and  expended  for  the  defend- 


1872.]  ISAACS  ».  Me  ANDREW.  468 

ants  by  the  plaintiff,  for  traveling  and  living  expenses,  at 
their  special  instance  and  request.  The  only  evidence  to 
support  these  averments,  as  shown  by  the  record,  is  the  last 
clause  of  the  letter  above  referred  to,  which  is  as  follows : 

"  The  expenses  of  yourself  and  wife  in  getting  out  there 
to  be  charged  to  and  borne  by  the  joint  property  and  busi- 
ness, and  your  living  expenses  there  to  be  in  like  manner  a 
charge  on  the  business." 

To  the  introduction  of  this  evidence  the  defendants  ob- 
jected, upon  the  ground  of  irrelevancy  and  incompetency. 
The  objection  was  overruled  and  the  defendants  excepted. 

The  language  of  this  letter  does  not  seem  capable  of  a 
double  meaning  or  of  a  doubtful  construction.  The  parties 
were  about  to  embark  in  a  business  enterprise,  the  success 
of  which  was  uncertain.  The  pay  of  the  managing  agent 
was  secured,  and  did  not  depend  upon  the  success  of  the 
undertaking.  A  proposition  was  made  that  the  traveling 
expenses  of  the  agent  in  getting  to  tlie  territory,  and  his 
living  expenses  while  there  should  be  borne  by  the  business. 
The  agent  accepts,  and  thereby  undertakes  to  perform  the 
duties  of  his  employment,  and,  in  so  doing,  so  far  as  these 
expenses  are  concerned,  runs  the  hazard  of  making  the 
business  a  success.  This  offer  to  pay  expenses  out  of  the 
business  was  designed  to  be  a  further  inducement  to  the 
agent  to  achieve  success.  It  was  designed  to  give  him  an 
interest  in  the  business  to  such  an  extent  as  that  his  ex- 
penses should  depend  upon  the  manner  lie  performed  his 
duties.  The  traveling  and  living  expenses  were  to  be  a 
charge  on  the  business  and  the  property ;  that  is  to  say, 
they  were  a  lien  thereon,  as  between  the  parties,  to  be  paid 
from  the  proceeds  thereof.  This  claim  is  in  the  nature  of 
a  mortgage.  It  is  against  the  property  and  the  business, 
and  creates  no  personal  liability. 

Can  it  be  successfully  claimed  that  this  offer  of  the  de- 
fendants, that  the  traveling  and  living  expenses  of  the 
plaintiff  might  be  a  charge  upon  the  business  and  property 
of  the  enterprise,  creates  a  personal  liability  to  such  an 
extent  that  the  defendants  can  be  proceeded  against  in  the 


4,~i4  ISAACS  v.  Me  ANDREW.  [Jan.  T., 

first  instance,  before  any  attempt  is  made  to  exhaust  the 
remedy  against  the  property  itself  ?  We  think  not,  and  we 
are  therefore  of  opinion  that  the  demand  of  the  plaintiff 
against  defendants  in  his  second,  third  and  fourth  causes 
of  action,  for  money  paid,  laid  out  and  expended  for  trav- 
eling and  living  expenses,  is  not  supported  by  this  evi- 
dence, and  that  the  objection  to  its  introduction  was  im- 
properly overruled. 

III.  Looking  at  the  verdict  of  the  jury  in  this  case,  we 
ascertain  that  they  find  for  the  plaintiff  upon  the  second 
and  third  causes  of  action  in  the  complaint,  and  that  they 
compute  interest  therefrom,  from  the  time  the  causes  of 
action  accrued  to  the  time  of  trial.     It  will  be  remembered 
that  these  causes  of  action  are  for  money  paid,  laid  out  and 
expended  by  the  plaintiff  for  the  defendants,  at  their  special 
instance  and  request,  and  it  is  contended  that  the  statute 
does  not  contemplate  the  payment  of  interest  upon  demands 
of  this  nature. 

Interest  is  a  creature  of  the  statute,  and  the  rate  thereof 
differs  in  different  States.  The  statute  of  Montana  (Laws 
of  1865,  p.  535)  provides,  that  creditors  shall  be  allowed  to 
collect  and  receive  interest  for  all  moneys  after  they  become 
due,  on  any  bond,  bill,  promissory  note  or  other  instrument 
of  writing ;  on  any  judgment  ;  also,  upon  money  lent,  or 
money  due  upon  settlement  of  amounts ;  upon  money 
received  to  the  use  of  another  and  retained  without  the 
owners  knowledge,  and  on  money  withheld  by  an  unrea- 
sonable and  vexatious  delay.  The  statute  does  not  seem  to 
contemplate  the  payment  of  interest  upon  money  paid,  laid 
out  and  expended  for  another,  unless  it  could  be  claimed  on 
the  ground  of  unreasonable  and  vexatious  delay;  and,  in 
such  a  case,  the  claim  would  have  to  be  supported  by  the 
necessary  averments  and  proof. 

However  reasonable  the  claim  for  interest  may  be  in  the 
present  case,  we  must  administer  the  law  as  we  find  it,  and 
cannot  take  upon  ourselves  the  duties  of  the  legislature. 

IV.  A  further  examination  of  the   verdict  of  the  jury 
discloses  the  fact  that  the  jury  found  that  the  plaintiff  had 


1872.]  ISAACS  c.  McAxDKKW.  4oY> 

performed  for  the  defendants,  under  said  contract,  the  ser- 
vices claimed  in  his  complaint,  that  is,  one  year's  service. 
The  evidence  shows  that  the  plaintiff  commenced  work  on 
the  first  of  April,  1867 ;  that,  during  the  summer  of  that 
season,  he  was  absent  from  defendant's  business  and  em- 
ployment for  more  than  one  month,  in  pursuit  of  his  own 
business  ;  that,  on  the  7th  of  January,  1868,  he  was  dis- 
charged from  the  defendants'  employment,  and  that,  on  the 
17th  day  of  March,  1868,  and  before  his  year's  service  had 
expired,  and  of  his  own  motion  and  without  the  knowledge 
of  defendants,  he  left  the  Territory  of  Montana  and  went  to 
the  city  of  New  York,  and  how  the  jury  could  find  that  the 
plaintiff,  from  the  first  day  of  April,  1867,  to  the  first  day 
of  April,  1868,  was  in  this  Territory,  working  for  defendants, 
under  this  contract,  we  are  unable  to  see.  We  would  not 
disturb  the  verdict  of  a  jury  where  there  is  evidence  to 
support  it,  even  though  we  were  satisfied  that  the  verdict 
was  against  the  weight  of  evidence,  but  in  this  case  it  seems 
to  be  admitted  that  the  plaintiff  left  the  Territory  before  the 
year  had  expired,  and  for  a  portion  of  the  time  that  the  jury 
say  he  was  here  at  work  under  the  contract,  he  was  in  fact 
in  New  York  city  attending  to  his  own  affairs. 

This  finding  of  the  jury  is  against  the  evidence. 

V.  This  contract  was  made  in  New  York,  but  to  be  per- 
formed in  Montana.  It  is  silent  as  to  the  place  of  payment, 
and  as  to  the  rate  of  interest  in  case  payment  is  delayed. 
The  question  then  occurs,  where  payment  should  be  de- 
manded and  the  rate  of  interest  that  can  be  claimed  if  pay- 
ment is  delayed  or  refused. 

This  is  a  naked  promise,  without  any  special  condition  as 
to  the  place  of  payment,  and  payment  must  be  demanded 
of  the  maker  where  lie  is  or  at  his  domicile.  2  Pars,  on 
Cont.  583. 

So  that  in  the  case  before  us,  it  was  necessary  to  aver  a 
demand  of  payment,  and  if  the  defendants  were  then  resid- 
ing in  New  York  city,  or  had  their  domicile  there,  it  WHH 
necessary  to  prove  demand  at  that  place.  And  it  would 
seem  to  result  from  the  authorities,  that  if  payment  is  de- 


456  ISAACS  v.  Me  ANDREW.  [Jan.  T., 

layed  or  refused  after  demand  made,  the  party  may  collect 
interest,  according  to  the  rate  of  interest  in  the  county  where 
the  contract  is  performed,  if  by  the  nature  of  the  contract 
interest  is  recoverable  by  the  laws  of  that  country. 

The  creditor  is  supposed  to  borrow  money  where  he  is, 
and  in  the  country  where  he  is  performing  the  contract,  to 
supply  the  deficiency  occasioned  by  the  failure  to  pay  on  the 
contract,  and  it  would  be  but  justice  to  allow  him  to  recover 
on  the  contract  the  same  rate  of  interest  he  is  compelled  to 
pay  by  reason  of  a  breach  thereof,  and  this,  upon  the 
ground  that  where  a  contract  is  made  in  one  place  to  be 
performed  in  another,  the  law  of  either  place  may  be 
applied. 

VI.  James  P.  Isaacs,  the  plaintiff  in  this  action,  is  the 
husband  of  Maria  Josephine  Isaacs,  one  of  the  defendants. 
This  is  shown  by  the  contract  herein  set  forth.  The  cove- 
nants and  undertakings  of  that  contract  are  between  hus- 
band and  wife,  directly  without  the  intervention  of  a  trustee. 
That  is  to  say,  the  husband  undertakes  and  promises,  for  a 
consideration,  to  work  for  his  wife  and  two  other  persons 
for  the  period  of  five  years,  the  wife  and  her  co-contractors 
failing  to  pay,  according  to  the  terms  of  the  agreement,  as 
the  husband  alleges,  he  brings  a  suit  against  his  wife  and 
the  other  contractors,  and  recovers  a  judgment  against  them 
in  the  court  below,  and  but  for  the  appeal  herein,  the  hus- 
band could  have  had  an  execution  against  his  wife's  prop- 
erty to  satisfy  the  judgment  and  costs.  Of  course  such  a 
contract,  and  such  a  judgment,  as  between  husband  and 
wife,  would  be  void  at  common  law,  but  how  far  the 
rights  of  the  parties  are  modified  by  statute,  if  at  all,  and 
whether  the  statutes  of  New  York  State  or  of  Montana  are 
to  control,  we  are  not  called  upon  to  decide,  as  the  question 
is  not  made  in  the  record  before  us. 

It  is  proper,  however,  to  observe  that,  if  any  statute 
authorizes  such  a  contract  as  the  one  under  consideration  as 
between  husband  and  wife,  and  a  suit  by  the  husband  against 
his  wife  to  recover  of  her  the  amount  due  thereon,  the  strict 
letter  of  the  statute  must  be  followed  in  the  institution  and 


1872.]  GALLAGHER  v.  BASEY.  457 

progress  of  such  a  suit,  and  it  seems  impossible  that  an  action 
of  the  kind  could  be  commenced  and  carried  forward  to 
judgment  and  execution  without  disclosing  in  the  plead- 
ings the  true  relation  of  the  parties  to  the  suit. 

VII.  It  is  assigned  for  error  that  the  court  refused  to  per- 
mit the  defendants  to  withdraw  their  counter-claim  as  set 
up  and  described  in  the  answer  of  defendants.  The  record 
shows  that  before  the  court  had  finished  charging  the  jury, 
and  after  the  testimony  had  closed,  the  defendants  moved 
the  court  for  leave  to  withdraw  their  counter-claim  from  the 
consideration  of  the  jury,  and  as  to  said  counter-claim  to 
dismiss  the  same,  which  motion  was  overruled. 

The  effect  of  such  a  motion  is  simply  an  application  to 
amend  the  pleading,  and  over  such  amendments  the  court 
should  exercise  a  sound  discretion,  and  it  has  power  to 
grant  or  refuse  amendments  and  upon  such  terms  as  it 
thinks  just  and  proper. 

We  do  not  think  the  granting  or  refusal  of  amendments 
can  properly  be  assigned  for  error  except  in  cases  where 
manifest  injustice  is  done,  and  this  court  will  not  consider 
an  alleged  error  of  this  kind  unless  it  is  made  apparent  that 
the  rights  of  the  parties  are  being  infringed. 

Judgment  reversed  and  cause  remanded. 

New  trial  granted. 


GALLAGHER  et  al.,  respondents,  v.  BASEY  et  al.,  appellants. 

EQUITY  —  trial  of  mttt  —  decree — fintUncjs  of  jnrij.  A  suit  In  equity  is  properly 
tried  by  the  court  that  bases  the  judgment  and  decree  upon  the  pleadings, 
evidence  and  proceedings  in  the  case  in  accordance  with  its  convictions, 
and  without  any  regard  to  the  findings  of  the  jury  upon  questions  that 
were  submitted  to  aid  the  conscience  of  the  court,  or  any  other  considera- 
tions. 

EQUITY  AND  LAW — pon-rr  of  l-uislniurr  over  ]>rocceding$.  The  territorial  leg- 
islature can  prescribe  the  forms  of  proceedings  in  ca«'«  in  oqultv  and  ao- 

VOL.  I.— 58 


458  GALLAGHEK  ».  BASEY.  [Jan.  T., 

tions  at  law,  but  cannot  destroy  or  blend  together  the  separate  and  distinct 
jurisdictions  of  chancery  and  common  law,  which  have  been  conferred 
upon  courts  by  the  organic  act. 

CASES  IN  EQUITY  —  equitable  defense— trial  by  jury  — decree.  Cases  in  equity, 
in  which  equitable  relief  is  demanded,  and  actions  at  law,  in  which  an 
equitable  defense  is  made,  cannot  be  tried  by  a  jury  as  at  law,  but  the  de- 
cree must  be  rendered  by  the  judge,  sitting  as  a  chancellor  in  a  court  of 
chancery. 

STATUTORY  CONSTRUCTION  —  organic  act  —  "limited  by  law.1'  The  phrase 
"  limited  by  law,"  in  the  ninth  section  of  the  organic  act  of  the  Territory, 
means  that  the  mode  and  manner  of  proceedings  may  be  controlled  and 
governed  by  law. 

Appeal  from  the  Third  District,  Meagher  (Jaunty. 

THE  decree  was  rendered  by  WADE,  J.  The  jury  found 
eighteen  special  findings. 

The  facts  appear  in  the  opinion. 

The  parties  stipulated  that  this  cause  should  be  "heard 
and  determined  on  the  merits  of  the  decree  and  special 
findings  and  record  without  brief." 

E.  W.  TOOLE,  for  appellants. 

S.  ORR,  GHUMASERO  &  CHADWIOK  and  SHOBER  &  LOWRY, 
for  respondents. 

WADE,  C.  J.  This  was  an  application  for  an  injunction 
to  restrain  and  perpetually  enjoin  the  defendants  from  the 
use  of  the  waters  of  a  certain  stream  known  as  Avalanche, 
situate  in  the  Missouri  valley,  in  Meagher  county,  Montana. 

The  complaint  is  a  bill  in  chancery,  and  substantially  sets 
forth  :  That,  in  the  year  1866,  the  plaintiffs  and  their  prede- 
cessors in  interest  took  up  certain  ranches  on  the  public 
domain,  for  the  purpose  of  settlement  and  cultivation,  in 
the  county  of  Meagher,  situate  on  the  Missouri  river  bot- 
tom, a  short  distance  below,  a  stream  known  as  Avalanche, 
arid  that  water  for  irrigating  purposes  is  necessary  for  the 
successful  cultivation  of  said  ranches.  And  it  is  further 
alleged  that,  from  the  year  aforesaid  to  the  present  time,  the 
plaintiffs  and  their  predecessors  in  interest  and  possession 
have  occupied,  cultivated,  and  now  occupy  and  cultivate 


1872.]  GALLAGHER  o.  BASEY.  459 

said  ranches  ;  that  at  the  time  of  the  location  of  said  ranches 
by  the  plaintiffs,  the  water  flowing  in  Avalanche  creek  was 
unappropriated  by  any  person,  and  was  subject  to  appro- 
priation, and  that  the  plaintiffs  at  that  time,  by  means  of  a 
certain  ditch  constructed  by  them  and  their  predecessors, 
appropriated  five  hundred  inches,  miner's  measure,  of  the 
waters  of  said  creek  for  the  purpose  of  irrigating  their  said 
ranches,  and  that  that  amount  of  water  is  necessary  to  suc- 
cessfully cultivate  the  same,  and  that  plaintiffs'  ditch  taps 
said  creek  a  short  distance  above  where  the  same  empties 
into  the  Missouri  river ;  that  continuously  since  the  con- 
struction of  said  ditch,  up  to  the  time  of  the  wrongful  acts 
of  the  defendants  herein  complained  of,  the  plaintiffs  and 
their  predecessors  in  interest  have  successfully  cultivated 
their  said  ranches  by  means  of  said  ditch  and  the  waters 
thereby  appropriated.  The  complaint  further  charges  that, 
long  after  the  appropriation  of  said  waters  by  the  plaintiffs, 
the  defendants,  well  knowing  the  rights  of  the  plaintiffs  in 
the  premises,  and  well  knowing  that  said  plaintiffs,  by  vir- 
tue of  prior  appropriation  had  become  entitled  to  the  use 
of  said  waters,  and  in  violation  of  their  rights  proceeded  to 
<-rect  dams  across  said  creek,  above  the  head  of  plaintiff^ 
ditch,  and  to  construct  ditches  and  turn  out  and  divert  the 
waters  of  said  stream,  thereby  wholly  depriving  the  plain- 
tiffs of  the  use  and  enjoyment  of  the  same,  to  their  great 
and  irreparable  damage  and  injury,  and  thereby  render- 
ing the  ranches  of  the  plaintiffs  worthless  for  the  pur- 
poses of  cultivation.  The  prayer  of  the  complaint  is  for  a 
perpetual  injunction  to  restrain  and  enjoin  the  defendants 
from  the  use  of  the  waters  of  said  stream  to  the  injury  or 
damage  of  the  plaintiffs. 

The  answer  of  the  defendants  admits  that  the  plaintiffs 
have  ranches  on  the  Missouri  river  bottom  as  averred  in  the 
complaint,  but  specifically  denies  each  and  every  other  ma- 
terial allegation  of  the  complaint,  and  charges  that  plaintiffs 
have  no  rights  to  the  waters  of  said  stream  as  against  the 
defendants,  and  that  the  acts  of  the  defendants  have  in  no 
manner  injured  or  damaged  the  plaintiffs  <>r  their  ranches. 


460  GALLAGHER  -o.  BASEY.  [Jan.  T. 

The  foregoing  statement  of  the  case  is  sufficient  for  our 
present  purpose,  and  it  will  be  seen  that  the  cause  is  a  bill  in 
chancery  wherein  equitable  relief  is  demanded,  and  the  form 
of  proceedings  in  chancery  practice,  as  distinguished  from 
actions  at  law,  is  properly  applicable  to  the  case,  and  the 
present  inquiry  involves  the  question  whether  this  case  was 
tried  as  an  action  at  law  or  as  a  suit  in  equity. 

By  the  record  it  appears  that  the  trial  took  place  at  the 
May  term,  1871,  of  the  district  court  of  Meagher  county,  and 
that  upon  the  trial  certain  questions  were  submitted  by 
the  court  to  a  jury  to  answer,  which  they  did,  and  the 
questions  and  answers  were  filed  with  the  papers  in  the  case. 

Afterward,  at  the  July  term,  1871,  of  the  district  court 
of  Lewis  and  Clarke  county,  the  cause  came  on  to  be  heard 
upon  plaintiff's  motion  for  judgment  and  decree  against 
the  defendants,  and  in  favor  of  the  plaintiffs,  the  cause  hav- 
ing been  removed  to  that  court  by  agreement  of  the  parties 
for  that  purpose.  This  motion  having  been  fully  argued  by 
counsel  for  both  plaintiffs  and  defendants,  and  the  cause 
finally  submitted  to  the  court  for  judgment  and  decree, 
upon  the  pleadings,  evidence  and  proceedings  in  the  case, 
the  court  find :  That,  as  against  the  plaintiffs,  the  defendant. 
J.  V.  Stafford,  is  entitled  to  the  right  to  the  use  and  enjoy- 
ment of  such  an  amount  of  the  waters  of  Avalanche  creek, 
mentioned  in  the  plaintiffs'  complaint,  to  be  taken  from 
said  creek  at  the  head  of  defendants'  ditch,  as  would 
amount  to  thirty-five  inches  at  the  head  of  plaintiffs' 
ditch,  and  that  such  right  is  clearly  established,  and 
that  as  against  the  defendants  in  this  action,  saving 
the  above  amount  of  the  waters  of  said  creek,  the  plain- 
tiffs in  this  action  are  clearly  entitled  to  the  full  and 
free  use,  occupation  and  enjoyment  of  two  hundred  and 
fifteen  inches,  miner's  measure,  of  the  waters  of  said  creek, 
to  be  taken  therefrom  at  the  point  where  their  said  ditch 
taps  said  creek,  as  described  in  said  complaint,  and  that 
said  plaintiffs  have  an  indisputable  right  as  against  the  de- 
fendants, to  have  said  amount  of  the  waters  of  said  creek  at 
all  times  to  flow  down  the  same  to  the  head  of  said  ditch. 


1872.]  GALLAGHER  «.  BASEY.  461 

and  that  defendants,  previous  to  the  commencement  of  this 
action,  had  diverted  said  waters  from  said  plaintiffs'  ditch. 

It  will  be  observed  that  the  foregoing  findings  of  the  court 
are  based  upon  the  pleadings,  evidence  and  proceedings  in 
the  case,  as  fully  appears  from  the  decree. 

These  findings  and  this  decree  emanate  entirely  from  the 
court,  and  speak  the  convictions  of  the  court  upon  the  evi- 
dence in  the  case,  uncontroverted  by  any  other  consideration. 

A  comparison  of  the  findings  of  the  court  as  contained  in 
the  decree,  with  the  answers  to  the  questions  submitted  to 
the  jury,  will  conclusively  disclose  the  fact  that  the  court 
disregarded  certain  findings  of  the  jury,  and  that  the  court 
alone  is  responsible  for  the  decree  and  the  findings  thereof. 

We  are,  therefore,  of  opinion,  that  the  objection  of  de- 
fendants that  the  case  was  tried  as  an  action  at  law,  when 
it  should  have  been  tried  as  a  suit  in  equity  is  not  well 
taken. 

Now  for  the  purpose  of  settling,  so  far  as  is  possible,  the 
vexed  question  as  to  the  right,  under  our  code  of  civil  pro- 
cedure, of  blending  in  one  proceeding  actions  at  law  and 
suits  in  equity  ;  and,  as  particularly  applicable  to  the  case 
under  consideration,  we  say  :  That  under  and  by  virtue  of 
the  act  organizing  this  territory,  the  supreme  and  district 
cou  rts  are  clothed  with  chancery  as  well  as  common-law  j  uris- 
diotion,  and  in  the  exercise  of  the  authority  thus  conferred, 
the  forms  of  proceedings  must  conform  to  the  well-known 
and  recognized  distinctions  pertaining  to  said  jurisdictions, 
as  limited  by  law,  that  is  to  say  :  causes  in  equity,  wherein 
equitable  relief  is  demanded,  or  where  an  equitable  defense 
is  made  to  a  claim  at  law,  must  be  tried  as  in  a  court  of 
chancery,  and  the  decree  must  proceed  from  the  judge  sitting 
as  a  chancellor,  and  it  would  be  error  in  the  class  of  cases  de- 
scribed to  try  them  as  at  law  to  a  jury  :  that  it  is  competent 
to  limit  and  control  by  statute,  the  forms  of  proceedings  in 
actions  at  law  and  suits  in  equity,  but  that  no  statute  and  no 
law  of  our  legislature  can,  in  any  manner,  destroy  or  blend 
together  these  separate  and  distinct  jurisdictions  ;  that  our 
organic  act  recognizes  a  distinction  between  suits  in  equity 


462  GALLAGHER  v.  BASEY.  [Jan.  T.; 

and  actions  at  law,  and  that  the  substance  of  this  distinc 
tion  must  be  preserved,  although  the  forms  of  proceedings 
may  be  prescribed  and  limited  by  law,  and  that  the  civil 
code  may  be  followed  in  equity  causes,  so  far  as  the  same  is 
applicable,  but  that  care  must  be  taken  to  preserve  the  dis- 
tinguishing features  of  a  suit  in  chancery. 

The  organic  act  provides  that  "the  supreme  and  district 
courts  shall  possess  chancery  as  well  as  common-law  juris- 
diction." It  further  provides:  "The  jurisdiction  of  the 
several  courts  herein  provided  for,  both  appellate  and 
original,  and  that  of  the  probate  courts  and  justices  of  the 
peace,  shall  be  as  limited  by  law." 

The  meaning  of  the  phrase  "as  limited  by  law,"  is,  that 
the  mode  and  manner  of  proceedings  may  be  controlled  and 
governed  by  law,  but  this  does  not  at  all  impair  the  decla- 
ration, that  the  courts  shall  possess  chancery  as  well  as  com- 
mon-law jurisdiction,  and  these  separate  and  distinct  juris- 
dictions being  thus  conferred,  they  cannot,  by  any  action 
of  the  legislature  be  blended  together,  but  must  be  kept  and 
preserved  inviolate. 

The  suit  under  consideration  was  a  bill  in  chancery, 
wherein  the  equitable  jurisdiction  of  the  court  was  prop- 
erly invoked,  and  the  record  herein  clearly  shows  that  it 
was  tried  to  the  court  sitting  as  a  chancellor,  and  that  the 
decree  emanates  from  the  chancellor,  and  that  the  questions 
submitted  to  the  jury  were  to  aid  the  conscience  of  the  court, 
but  not  to  control  it,  as  fully  appears  from  the  fact,  that 
while  the  jury  answered  that  as  against  the  plaintiffs,  the 
defendants  had  not  diverted  or  appropriated  the  waters  of 
the  stream  to  the  injury  or  damage  of  the  plaintiffs,  the 
court  found  precisely  to  the  contrary  ;  that  the  defendants 
had  diverted  and  appropriated  said  waters,  to  the  damage 
and  injury  of  the  plaintiffs,  and  base  a  decree  for  a  perpetual 
injunction  upon  this  fact. 

The  judgment  and  decree  of  the  court  below  is  affirmed, 

Judgment  affirmed. 


CASES 
ARGUED  AND  DETERMINED 

Qt  THB 

SUPREME  COURT 

AT  THE 

AUGUST   TERM,    1872,    HELD   AT  VIRGINIA   OITT, 


Present : 


HON.  DECIU8  8.  WADE,  CHIEF  JUSTICB. 
How.  HIRAM  KNOWLES, 
HON.  JOHN  L.  MURPHY, 


r    [  JUSTICl 


DAVIS,  appellant,  v.  BLUME  et  al.,  respondents. 

PRACTICK  —  verdict—  evidence.  The  verdict  of  a  jury  will  not  be  disturbed  If 
there  is  competent  evidence  to  support  it. 

BVIDKNCI:  —  letter  rejected  as  hearsay — replevin.  In  an  action  to  replevy  cer- 
tain cattle  from  a  party  who  had  traded  mules  for  them,  the  plaintiff  cannot 
introduce  as  testimony  a  letter  that  was  written  by  another  party  to  the 
sheriff,  statins  that  he  had  a  mortyratre  upon  two  of  the  mules,  which  were 
in  the  custody  of  the  sheriff,  under  attachment. 

OF  MORTGAGED  PROPERTY.  The  owner  of  personal  property  that  has  been 
mort<ra<red,  can  sell  or  exchange  the  same  without  affecting  the  validity  of 
the  mortgage. 


464  DAVIS  v.  BLUME.  [Aug.  T., 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THIS  cause  was  tried  in  February,  1872,  by  a  jury,  that 
returned  a  verdict  for  Blume.  WADE,  J.,  overruled  the 
motion  for  a  new  trial,  and  Davis  appealed.  The  letter  of 
December  6,  1870,  referred  to  in  the  opinion,  informed 
Boley,  the  sheriff,  that  Davis  had  advised  Watson  &  Bro. 
of  the  levy,  by  the  said  Boley,  on  the  mules  in  controversy, 
as  the  property  of  Sample ;  that  Watson  &  Bro.  were  the 
owners  of  one  span  of  the  mules  attached  by  him  ;  that  they 
had  leased  the  same  to  Blume  for  $1  per  month,  and  that 
Watson  &  Bro.  had  a  bill  of  sale  of  said  mules  from  Blume. 

The  other  facts  are  stated  in  the  opinion. 

CHUMASEBO  &  CHAD  WICK,  for  appellant. 

The  court  erred  in  excluding  the  letter  of  Watson  &  Bro. 
to  Boley.  It  was  material  and  competent  evidence.  It 
showed  that  respondents  had  no  authority  to  trade  off  the 
mules,  and  that  Watson  &  Bro.  had  refused  to  ratify  the 
trade  made  by  respondents.  The  letter  was  properly 
identified.  1  Phil,  on  Ev.  184,  185. 

The  verdict  of  the  jury  is  clearly  against  the  evidence. 
The  testimony  showed  that  the  trade  between  Sample  and 
respondents  was  a  conditional  sale,  which  appellant  and 
Watson  &  Bro.  had  refused  to  ratify.  The  jury  found  that 
the  trade  was  an  unconditional  sale. 

SHOBEE  &  LOWRY  and  G-.  GK  SYMES,  for  respondents. 

The  trade  between  Sample  and  respondents  was  uncon- 
ditional. Respondents  satisfied  the  mortgage  of  Watson 
&  Bro.  on  one  span  of  the  mules.  One  party  cannot  rescind 
a  contract,  unless  both  can  be  restored  to  the  condition  in 
which  they  were  before  the  contract  was  made.  2  Pars,  on 
Cont.  679,  680,  780.  Appellant  could  not  claim  the 
cattle  without  returning  the  mules.  Hunt  v.  Silk,  5 
East.  249. 

The  letter  of  Watson  &  Bro.  was  hearsay  evidence,  and 
inadmissible.  1  Greenl.  on  Ev.,  §  99.  The  letter  was  not 


1872.]  DAVIS  v.  BLUMB.  465 

between  the  parties  to  the  action,  and  could  have  no  weight 
if  admitted. 

The  case  was  fairly  presented  by  the  instructions  given  at 
the  instance  of  appellant.  The  verdict  was  authorized  by 
the  evidence.  If  there  was  a  conflict  of  evidence,  the  ver- 
dict will  not  be  disturbed.  Ming  v.  Truett,  Jan.  T.,  1871 ; 
Kimball  v.  Gearliart,  12  Gal.  27. 

WADE,  J.  This  was  an  action  of  replevin,  brought  by 
plaintiff,  to  recover  the  possession  of  twelve  head  of  cattle 
from  the  defendant. 

The  testimony  shows  that  the  defendant  became  possessed 
of  the  cattle  by  virtue  of  having  traded  for  them  four  mules, 
\vith  one  Sample,  an  agent  of  the  plaintiff.  It  seems  that 
Watson  &  Bro.,  of  Helena,  were  the  owners  of  a  certain 
mortgage  upon  two  of  the  mules,  and  the  plaintiff  claimed 
that  the  sale  was  not  an  absolute  but  a  conditional  sale, 
depending  for  its  ratification  upon  the  consent  of  Watson 
&  Bro.,  and  upon  the  plaintiff,  the  trade  having  been  made 
in  his  behalf,  by  his  agent,  Sample.  The  trial  resulted  in  a 
verdict  for  defendant.  Motion  for  a  new  trial  was  made  and 
overruled,  and  this  action  of  the  court  is  one  of  the  errors 
complained  of. 

We  have  frequently  decided  that  this  court  cannot  dis- 
turb the  verdict  of  a  jury  where  there  is  competent  evidence 
to  support  such  verdict.  We  have  carefully  examined  the 
evidence  in  the  case.  The  leading  and  conclusive  question 
in  the  case  was  whether  or  not  this  trade  between  the  parties 
was  a  conditional  or  an  unconditional  one,  and  whether  or 
not  Sample  had  authority,  as  agent,  to  make  the  trade. 
These  questions  were  clearly  and  fairly  presented  to  the 
jury,  by  instructions  that  neither  party  have  found  any 
fault  with,  and  we  are  satisfied  that  the  jury  found  by  their 
verdict  according  to  the  weight  of  evidence.  There  is  not 
only  evidence  to  support  the  verdict,  but  the  weight  of  evi- 
dence is  in  favor  of  the  verdict. 

2.  The  next  and  only  remaining  question  presented  by  the 

Vol.  I.— 60. 


466  DAVIS  a.  BLUME.  [Aug.  T., 

record  is,  as  to  the  action  of  the  court  in  excluding  a  certain 
letter  offered  by  plaintiff  to  be  read  in  evidence. 

It  seems  that  after  the  mules  were  traded  for  and  received 
by  Sample,  they  were  attached  at  the  suit  of  one  Holback 
for  a  debt  against  Sample,  and  were  taken  possession  of  by 
the  sheriff  of  Jefferson  county ;  and,  while  the  sheriff  had 
possession  of  the  mules,  Watson  &  Bro.  wrote  a  letter 
to  the  sheriff  informing  him  of  their  claim  upon  the  mules. 
This  letter  was  obtained  by  the  plaintiff  and  offered  in  evi- 
dence, and  excluded  by  the  court. 

We  are  unable  to  see  the  materiality  of  the  letter  if  it 
had  been  competent  evidence,  and  it  was  clearly  incompe- 
tent, being  nothing  more  or  less  than  hearsay  testimony. 
If  Watson  &  Bro.  had  had  a  conversation  with  the 
sheriff,  and  informed  him  of  their  claim  upon  the  mules, 
no  one  would  have  supposed  that  the  sheriff  could  come 
into  court  and  detail  that  conversation  in  evidence  ;  and 
these  claims  of  Watson  &  Bro.  having  been  written  down 
in  a  letter,  does  not  change  the  character  of  the  evidence. 

If  the  letter  had  been  received  in  evidence  it  could  have 
furnished  no  light  upon  the  question  at  issue.  Suppose 
Watson  &  Bro.  had  a  mortgage  upon  the  mules,  this 
would  not  have  changed,  or  in  any  manner  interfered  with, 
the  right  of  defendant  to  trade  them,  subject  to  the  mort- 
gage. A  chattel  mortgage  upon  personal  property  does 
not  prevent  an  unconditional  sale  thereof.  The  mortgage 
remains  good,  notwithstanding  the  sale  or  exchange  of  the 
property,  and  the  object  in  requiring  mortgages  of  this 
kind  to  be  filed  with  the  recorder  is  to  give  notice  to  the 
public,  so  that  where  sales  and  exchanges  are  made  no  one 
will  be  deceived  thereby. 

Judgment  a 


1872.]  DAILY  t>.  REDFEBN.  467 


DAILY,  appellant,  v.  REDFERN  et  al.,  respondent. 

ASSAULT  AND  BATTERY  —  liability  of  parties.  In  an  action  to  recover  damage* 
for  an  assault  aud  battery,  the  defendants  are  jointly  and  severally  liable. 

PLEADING  —  complaint  for  assault  and  battery  —  conspiracy.  In  a  complaint  to 
recover  damages  for  an  assault  and  battery  committed  by  two  persons,  it  is 
not  necessary  to  allege  that  there  was  any  conspiracy  or  collusion  between 
the  defendants. 

PLEADING  —  complaint  for  assault  and  battery  —  absent  party  —  conspiracy.  In 
an  action  to  recover  damages  for  an  assault  and  battery  committed  by  a 
party,  at  the  instance  of  another,  who  was  absent  when  the  injury  was  in- 
flicted, the  complaint  should  allege  that  there  was  a  conspiracy  between  the 
parties  to  make  them  liable. 

CONSPIRACY — gist  of  action.  The  gist  of  the  action,  upon  a  charge  of  con- 
spiracy by  two  persons,  is  the  previous  preconcerted  agreement  or  confede- 
ration. 

Appeal  from  the  First  District,  Madison  County. 

JUDGMENT  was  rendered  by  MURPHY,  J.,  in  November, 
1871,  and  the  demurrer  of  Redfern  to  the  complaint  was 
sustained.  Daily  appealed.  The  facts  appear  in  the 
opinion. 

H.  N.  BLAKE,  for  appellant. 

The  only  inquiry  in  this  case  is,  whether  facts  enough  to 
support  the  action  are  stated  in  any  form.  Buzzard  v. 
Knapp,  12  How.  Pr.  504 ;  Graham  v.  Cameron,  13  id.  362. 

Appellant  properly  sued  the  respondents  jointly.  Barb, 
on  Parties,  203,  §  2  ;  2  Hill,  on  Torts,  292,  §  9. 

The  question  of  conspiracy  is  immaterial  in  this  action. 
The  respondents  are  liable,  if  they  committed  the  acts  set 
forth  in  the  complaint.  In  criminal  cases  of  a  similar 
nature,  the  indictment  n^ed  not  allege  collusion  or  con- 
spiracy. 1  Bishop  Or.  Pr..  £  r>6«  ;  2  id.,  §  68. 

The  complaint  is  sufficient.  2  Greenl.  on  Ev.,  §  89  ;  Samp- 
son v.  Henry,  11  Pick.  379  ;  2  Estee's  PI.  1-S. 

E.  W.  TOOLE  and  R.  H.  WILLIAMS  for  respondent. 
The  complaint  does  not  show  that  the  wrongs  averred  were 
done  at  the.  same  time,  but  on  th<-  sunn-  dav  onlv.     It  does 


468  DAILY  v.  REDFERN.  [Aug.  T., 

not  show  any  concurrence  or  concert  by  defendants.     Barb, 
on  Parties,  203  ;  2  Hill,  on  Torts,  292,  293. 

The  complaint  is  fatally  defective  in  not  alleging  con- 
spiracy and  concurrence  between  the  defendants,  and  with- 
out that  the  acts  of  one  defendant  do  not  extend  to  the  other. 
Brown  v.  Wheeler,  18  Conn.  199  ;  1  Greenl.  on  Ev.,  §  111  ; 
People  v.  Trim,  39  Cal.  78. 

WADE,  C.  J.  This  is  an  action  to  recover  damages  for  an 
assault  and  battery.  There  was  a  demurrer  to  the  complaint ; 
demurrer  sustained  and  judgment  for  defendants,  and  from 
this  judgment  plaintiff  appeals  to  this  court. 

The  complaint  alleges  :  "The  plaintiff  in  this  action  com- 
plains of  John  Redfern,  Sr.,  and  John  Smith,  the  defend- 
ants herein,  and  for  cause  of  action  states,  that  heretofore, 
to  wit :  On  November  23,  1869,  at  and  within  the  county  of 
of  Madison,  and  Territory  of  Montana,  the  defendants 
wrongfully  and  unlawfully  made  an  assault  upon  said 
plaintiff,  and  then  and  there  struck,  kicked,  beat,  bruised 
and  ill-treated  him,  and  did  then  and  there  with  a  sharp  in- 
strument, strike,  cut,  stab  and  wound  the  plaintiff  in  divers 
parts  of  his  body  in  so  grievous  a  manner  that  his  life  was 
by  means  thereof  greatly  despaired  of,  and  by  reason  of 
such  wounding,  the  plaintiff  then  and  there  became  sick, 
lame,  etc." 

The  demurrer  of  defendant  Redfern  is  based  upon  the 
ground  that  the  complaint  does  not  allege  any  conspiracy 
or  collusion  between  this  defendant  and  his  co-defendant,  so 
as  to  authorize  them  to  be  joined  in  this  action. 

Is  the  demurrer  well  taken  \ 

A  very  limited  consideration  of  the  nature  of  an  action 
for  an  assault  and  battery  will  enable  us  to  answer  this 
question.  In  such  an  action,  the  defendants  are  jointly  as 
well  as  severally  liable,  and  all  who  designedly  contributed 
to  the  injury,  may  well  be  joined  as  defendants,  or  it  would 
be  perfectly  competent  to  sue  each  one  separately,  and  a 
judgment  against  one  would  be  no  bar  to  an  action  against 
the  others.  And  this  joint  liability  in  no  manner  depends 


1872.]  DAILY  ».  KEDFERN. 

upon  the  collusion,  confederation  or  conspiracy  of  the 
parties.  It  rests  simply  upon  their  acts,  and  there  may  well 
be  joint  action  in  any  given  undertaking  without  any  col- 
lusion or  preconcerted  agreement  to  act.  Thus,  if  two  men 
should  commit  an  assault  and  battery  upon  another  without 
any  agreement  or  collusion  between  them,  they  would 
undoubtedly  be  jointly,  as  well  as  severally,  liable,  for  their 
action  is  joint,  and  does  not  depend  upon  any  previous  un- 
derstanding, whereas,  upon  a  charge  of  conspiracy  by  two 
men,  both  must  be  held  or  both  acquitted,  and  the  gist  of 
the  action  is  the  previous  preconcerted  agreement  or  con- 
federation. An  action  for  an  assault  and  battery  does  not 
necessarily  have  any  element  of  this  kind  pertaining  to  it. 
The  action  may  be  brought  against  twenty  men,  and  sus- 
tained as  to  nineteen  and  defeated  as  to  one,  or  it  may  be 
defeated  as  to  nineteen  and  sustained  as  to  one  ;  and  whether 
it  was  or  not  would  not  depend  upon  any  collusion  or  agree- 
ment, but  would  stand  or  fall  upon  the  fact  whether  or  not 
the  nineteen  or  the  one  contributed  to  the  injury. 

The  doctrine  here  enunciated  seems  to  be  fully  sustained 
by  the  authorities. 

Mr.  Milliard  on  Torts,  says,  p.  312 :  "  Inasmuch  as  the 
liability  of  several  persons  for  the  same  tort  is  originally 
separate  as  well  as  joint,  it  does  not  lose  this  character  by 
the  mere  commencement  of  a  joint  action  against  them,  but 
such  action  may  proceed  to  different  results  with  regard  to 
the  different  defendants.  Thus,  where  there  is  no  evidence 
against  one  he  is  entitled  to  judgment."  Hamilton  v.  Me- 
Gee,  19  Md.  43. 

So,  in  an  action  in  tort  against  six,  the  plaintiff  may  re- 
cover a  verdict  against  two.  Cooper  v.  South,  4  Taunt.  802. 

This  action  is  trespass,  and,  in  actions  of  this  class,  the 
plaintiff  may  join  as  many  defendants  as  he  thinks  proper, 
but  the  question  of  joint  liability  is  a  question  for  the  jury, 
and  if  it  should  appear  upon  the  trial  that  all  the  defend- 
ants contributed  to  the  injury  complained  of,  all  would  be 
liable,  even  if  there  was  no  collusion  or  concert  of  action 
between  them.  Only  those  would  be  liable  who  contributed 


470  MOCHON  0.  SULLIVAN.  [Aug.  T.; 

to  the  injury.  Undoubtedly,  men  may  conspire  together  to, 
and  commit  an  assault  and  battery,  but  the  conspiracy  or 
collusion  is  not  a  necessary  ingredient  to  create  a  joint 
liability. 

This  doctrine  is  based  upon  the  proposition,  as  alleged  in 
the  complaint,  that  both  parties  were  present  and  committed 
the  injury  complained  of.  If  one  of  the  parties  was  absent, 
but  had  procured  the  other  to  commit  the  injury,  then,  in 
order  to  charge  the  absent  party,  conspiracy  must  be  al- 
leged and  proven. 

Judgment  reversed  and  cause  remanded. 


MOCHON,  respondent,  v.  SULLIVAN  et  al.,  appellants. 

MECHANIC'S  LIEN  —  common  law  —  possession.  At  common  law,  the  lien  of  a 
mechanic  for  labor  continued  during  the  time  the  property  remained  in  his 
possession,  and  was  lost  as  soon  as  he  parted  with  its  possession. 

MECHANIC'S  LIEN —  statutory  remedy.  In  this  Territory,  mechanics  are  en- 
titled to  liens  for  their  labor  under  the  statute,  which  makes  them  a  charge 
upon  the  property  for  a  certain  period  from  the  commencement  of  the  labor, 
and  the  liens  are  not  affected  by  the  possession  of  the  property. 

MECHANIC'S  LIEN  —  proceedings  in  equity.  The  lien  of  a  mechanic  is  in  the 
nature  of  an  equitable  right,  and  must  be  enforced  according  to  the  roles 
and  principles  of  a  proceeding  in  chancery. 

STATUTORY  CONSTRUCTION  —  act  relating  to  mechanics'  liens  —  personal  judg- 
ment. The  part  of  the  act  of  the  legislature  "  securing  liens  to  mechanics," 
approved  December  30,  1864,  which  authorizes  the  rendition  of  a  personal 
judgment  as  at  law,  blends  together  law  and  equity  in  the  same  proceeding, 
and  is  void. 

CASES  AFFIRMED.  The  cases  of  Gallagher  v.  Basey,  ante,  457,  and  Woolman  \. 
Garringer,  post,  535,  holding  that  the  blending  together  of  law  and  equity  is 
in  conflict  with  the  organic  act,  affirmed. 

Appeal   from    the    Third  District.   Lewis    and   Clarke 

County. 

IN  August,  1871,  the  court,  WADE,  J.,  entered  a  decree 
_n  this  action.     The  facts  are  stated  in  the  opinion. 

WAIIBEX  &  SANDERS,  for  appellant  Sullivan. 
No  brief  on  file. 


1872.  J  MOCHON  v.  SULLIVAN.  471 

SHOBER  &  LOWRY  and  E.  W.  TOOLE,  for  respondent. 

Mechanics1  liens  attach  from  the  time  of  the  commence- 
ment of  the  building,  and  have  priority  over  all  incum- 
brances  made  thereafter.  Acts  1865,  334,  §  8  ;  1  Hill,  on 
Real  Proj).  492,  §  40  ;  Mason  v.  Germaine,  ante,  263 ; 
Dubols1  Administrators  v.  Wilson's  Trustees,  21  Mo.  213. 

Appellant  Sullivan  is  in  default  and  had  no  right  to  ap- 
peal. The  appeal  is  taken  for  delay  and  vexation,  and  the 
judgment  should  be  affirmed  with  damages.  Civ.  Prac. 
Act,  §  329 ;  De  Witt  v.  Porter,  13  Cal.  171 ;  Nickerson  v. 
California  Stage  Co.,  10  id.  520. 

MURPHY,  J.  This  suit  was  brought  to  foreclose  a  me- 
chanic's lien  against  certain  property  described  in  the  com- 
plaint of  the  defendant  Sullivan,  under  an  act  of  the 
territorial  legislature,  entitled  ';An  act  securing  liens  to 
mechanics  and  others,"  approved  December  30,  1864,  and 
was  tried  and  determined  in  conformity  with  the  provisions 
thereof. 

John  W.  Reins,  S.  M.  Hall,  A.  M.  Woolfolk  and  Geo. 
W.  Fox  were  also  made  parties  defendant  on  the  ground  of 
interest,  against  all  of  whom,  as  well  as  defendant  Sullivan, 
default  was  entered,  except  Reins,  for  whom  S.  H.  Bohm 
interpleaded,  alleging  a  prior  lien  by  virtue  of  two  several 
mortgages. 

The  cause  was  tried  by  the  court,  a  jury  being  waived, 
and  upon  the  pleadings,  proofs  and  findings,  a  judgment 
was  rendered  in  favor  of  the  plaintiff  against  the  defendant 
Sullivan,  for  $3. 410.  principal  and  interest,  with  interest  at 
ten  pei-  rent  per  annum  from  date  of  judgment,  and  for  costs 
taxed  at  $45. 

There  was  also  a  special  fieri  facias  ordered  to  issue  to 
be  levied  upon  the  property  aforesaid,  if  not  sufficient  per 
sonal  property  could  first  be  found  to  satisfy  said  judgment 
and  costs,  and  in  that  event  the  property  was  ordered  to  be 
sold  and  so  applied,  and  the  defendants  barred  and  fore- 
closed from  all  equity  of  redemption. 


472  MOOHON  «.  SULLIVAN.  [Aug.  '^•» 

And  from  the  jadgment-roll  the  defendant  Sullivan  ap 
peals  to  this  court. 

The  only  matters  that  are  necessary  for  us  to  consider 
here,  are  the  character  of  the  action  and  the  nature  of  the 
judgment,  decree  or  final  order  to  be  entered. 

And  these  questions  involve,  to  some  extent,  the  construc- 
tion of  the  statute  referred  to. 

The  mechanic's  lien  is  derived  from  the  principle  of  the 
lien  on  personal  property  at  common  law,  and  is  based  upon 
statutory  enactment  in  the  different  States  and  Territories. 

It  is  remedial  in  its  character,  rests  upon  the  broad 
foundation  of  natural  equity  and  commercial  necessity. 

It  is  not  a  common-law  right,  but  simply  a  creature  of 
the  statute,  and  differs  in  some  respects  from  all  other  liena 
known  to  the  law. 

Under  the  common  law,  a  lien  only  exists  while  the  partj 
continues  in  possession  of  the  property  upon  which  he  has 
bestowed  his  labor,  for  by  parting  with  possession  he  shows 
that  he  thereafter  trusts  to  the  personal  credit  of  his  debtor. 

But  to  the  validity  of  this  lien  no  possession  is  necessary, 
for  it  is  a  charge  upon  the  property  in  the  hands  of  the 
owner,  and  when  it  once  attaches,  it  relates  back  to  and 
takes  effect  from  the  commencement  of  the  labor  or  appro- 
priation. 

It  continues,  without  either  form  or  notice,  for  a  certain 
period  according  to  the  statute,  and  then  is  kept  alive  by  the 
act  of  the  party  and  judicial  process. 

It  is  not  a  general,  but  a  particular  lien,  and  is  in  its 
nature  peculiar  and  of  an  equitable  character. 

The  doctrine  upon  which  it  is  founded  is  upon  the  con- 
sideration of  natural  justice,  that  the  party  who  has  en- 
hanced the  value  of  property,  by  incorporating  therein  his 
labor  or  materials,  shall  have  a  preferred  claim  on  said  prop- 
erty for  the  value  of  said  labor  or  materials. 

The  foundation  of  the  suit  to  enforce  it  arises  only  by 
virtue  of  an  express  or  implied  contract  with  the  owner,  and 
the  proceedings  to  some  extent  resemble  and  are  somewhat 
in  the  nature  of  proceedings  in  rem. 


1872.]  MOCHON  v.  SULLIVAN.  473 

The  theory  of  the  lien  is,  that  the  party  by  whom  the 
labor  is  performed  or  materials  f  urnished  for  the  erection  or 
repair  of  buildings,  on  credit,  retains  his  claim  to  them  after 
they  have  entered  into  the  structure  and  become  inseparably 
connected  with  it. 

The  object  of  the  statute  is  to  create  and  preserve  ample 
security  to  the  laborer  or  material  man,  and,  therefore,  to 
charge  the  estate  with  a  lien,  or  incumbrance,  independent 
of  any  personal  remedy  he  may  have. 

The  artificer  or  business  man  acquires  a  qualified  prop- 
erty in  the  thing  upon  which  he  has  bestowed  his  time  and 
labor,  or  into  which  he  has  incorporated  his  materials. 
The  very  principle  upon  which  his  right  is  grounded  comes 
from  the  increased  value  of  the  property  he  has  brought 
about,  by  the  accession  of  his  labor  or  materials,  and  is 
purely  an  equitable  one. 

And  the  owner  thus  benefited  holds  his  property  subject 
to  and  liable  for  this  equitable  claim,  which  grows  out  of 
and  depends  upon  this  enhanced  value  of  his  interest.  We 
are  of  opinion  that  this  lien,  being  an  equitable  right,  or  in 
the  nature  of  an  equitable  right,  must  be  enforced  in  con- 
formity to  the  established  rules  and  principles  governing 
proceedings  in  chancery.  We  hold,  therefore,  that  in  so 
far  as  the  mechanics'  lien  law  of  this  Territory  authorizes 
the  rendering  of  a  personal  judgment  as  at  law,  it  blends  law 
and  equity  together  in  the  same  proceeding,  is  in  contra- 
vention of  the  organic  act,  is  in  conflict  with  the  doctrine 
laid  down  by  this  court  in  the  case  of  Gallagher  et  al.  v. 
Basey  el  al.,  decided  at  the  last  term,  and  of  Woolman  et  al. 
v.  Garringer  et  al.,  by  which  it  was  re-affirmed  at  the  pres- 
ent term,  and  is  void  and  of  no  effect. 

The  case  is  remanded,  and  the  judgment  is  modified  in 
conformity  with  the  order  made  at  the  last  term. 

It  is  ordered  that  the  decree  of  the  court  below  in  this 
case  be  so  modified  as  to  make  void  the  personal  judgment 
against  defendant  Sullivan,  and  in  favor  of  Mochon,  for  the 
amount  of  mechanic's  lien  on  the  promises,  and  that  after 
sale  of  the  premises  judgment  be  rendered  in  favor  of  plain- 
VOL.  I.—  60 


474  RIALE  v.  ROUSH.  [Aug.  T., 

tiff  and  against  defendant  Sullivan  for  any  deficiency,  after 
such  sale,  and  that  the  decree  provide  that  the  sheriff  be 
appointed  special  master  commissioner  to  make  sale  of  said 
premises,  and  that  the  decree,  when  modified  as  herein  spe- 
cified, be  and  the  same  is  hereby  confirmed. 


RIALE  et  al.,  respondents,  ».  ROUSH  et  al.,  appellants. 
GK  GK  SYMES,  for  appellants. 
CHUMASERO  &  CHADWICK,  for  respondent. 

THE  facts  in  this  case  are  the  same  as  those  in  the  case  of 
Mochon  v.  Sullivan,  ante,  470,  and  the  same  decision  was 
made  by  the  court. 

MURPHY,  J.  This  is  an  action  to  foreclose  a  mechanic's 
lien. 

There  was  a  personal  judgment  in  the  court  below,  and 
execution  thereon  awarded,  and  the  defendants  appealed. 

Upon  the  authority  of  the  decision  in  the  case  of  Mochon 
v.  Sullivan,  at  the  present  term,  we  hold  that  this  cannot  be 
done,  and  the  decree  or  judgment  is  so  modified  as  to  make 
void  the  personal  judgment,  and  the  cause  remanded. 

Judgment  affirmed  in  part  and  reversed  in  part 


1872.]  HERBERT  v.  KING.  47fi 


HERBERT,  appellant,  v.  KING  et  al.,  respondents. 

EJECTMENT — proof — title — possession.  In  an  action  of  ejectment,  the  plain- 
tiff must  prove  that,  at  the  time  the  suit  was  brought,  the  title  or  right  to 
the  immediate  possession  of  the  property  was  in  himself,  and  that  the  de- 
fendant unlawfully  withheld  the  possession  of  the  same. 

PRACTICE  —  nonsuit  —  review  of  evidence.  In  reviewing  the  ruling  of  the  court 
below  in  granting  a  nonsuit,  this  court  will  consider  every  fact  as  proven 
which  the  evidence  tended  to  prove. 

PRINCIPAL,  AND  AGENT—  fraud  of  agent.  The  principal  is  liable  for  the  fraud 
that  has  been  perpetrated  by  his  agent,  who  was  acting  within  the  scope  of 
his  authority. 

PRINCIPAL  AND  AGENT  —  authority  of  superintendent  of  a  flume.  Courts  will 
not  enlarge  the  authority  of  an  agent,  and  the  acts  of  a  superintendent  of  a 
flume  in  constructing,  repairing  or  superintending  the  same,  are  binding 
upon  the  principal;  but  his  acts  and  declarations  upon  matters  that  are 
foreign  to  the  flume  cannot  affect  his  principal. 

PRACTICE — grounds  for  nonsuit.  A  nonsuit  should  be  granted  if  there  is  no 
proof  to  support  a  material  averment  of  the  complaint. 

Appeal  from  the  First  District,  Jefferson  County. 

IN  October,  1871,  the  court,  MURPHY,  J.,  sustained  the 
motion  of  King  et  al.  for  a  nonsuit. 

SHOBER  &  LOWRY  and  G.  G-.  SYMES,  for  appellant. 

Granting  a  nonsuit  on  the  facts  is  a  question  of  law,  and 
niay  be  reviewed  on  appeal  from  the  judgment  roll,  and 
statement  of  the  evidence  on  appeal.  3  Estee's  PI.  496  ; 
Cravens  v.  Dewey,  13  Cal.  42 ;  Darst  v.  Rush,  14  id.  82 ; 
Pratt  v.  Hull,  13  Johns.  335. 

A  nonsuit  cannot  be  granted  when  there  is  any  evidence 
rending  to  prove  plaintiff's  case.  JfcKec  v.  Green,  31  Cal. 
418;  Kelley  v.  Kelley,  43  Barb.  419  ;  Cravens  v.  Dewey,  13 
Cal.  42. 

In  considering  the  ruling  on  the  nonsuit,  this  court  will 
consider  as  proven  every  fact  which  the  evidence  tended  to 
prove.  Dow  v.  Gould  A-  C.  Jf.  Co.,  31  Cal.  650;  Dero  v 
Oordes,  4  id.  117  ;  Lalxn  v.  KopUn,  4  N.  V.  547. 

The  answer  admits  that  appellant  was  the  legal  owner  ol 
the  mining  claims  in  controversy.  Appellant  testified  du 


476  HERBERT  v.  KING.  [Aug.  T.j 

rectly  that  respondents  had  possession  of  the  claims  at  the 
time  of  the  commencement  of  the  suit  and  afterward.  It 
was  error  for  the  court  to  grant  the  nonsuit,  because  we 
cannot  go  into  the  question  of  the  contradiction  of  this  tes- 
timony. If  contradicted,  the  province  of  the  court  ends  and 
that  of  the  jury  begins. 

The  declarations  of  O'Brien  were  made  when  he  was  the 
agent  of  respondents  and  acting  within  the  scope  of  his 
authority.  They  should  have  been  admitted.  1  Greenl., 
§  113 ;  St3ry  on  Agency,  §§  134-137  ;  1  Phil,  on  Ev.  381  ; 
Thalhimer  v.  Bririkerlioff,  4  Wend.  394. 

If  an  agent,  when  acting  within  the  scope  of  his  authority, 
perpetrates  a  fraud  or  wrong  on  another,  or  occasions  a  con- 
sequential injury,  the  principal  is  liable.  Story  on  Agency, 
§§  452,  453,308;  2  Greenl.  on  Ev.,  §  68  ;  Foster  v.  Essex 
Bank,  17  Mass.  479 ;  Williams  v.  Mitchell,  id.  98 ;  1 
Pars,  on  Cont.  73,74  ;  Jeffrey  v.  Bigelow,  13  Wend.  618  ; 
Schieffelin  v.  Harvey,  6  Johns.  170. 

The  credibility  of  witnesses  is  with  the  jury.  The  court 
cannot  grant  a  nonsuit  because  it  thinks,  from  other  cir- 
cumstances in  the  case,  that  the  witness  did  not  tell  the 
truth.  Merritt  v.  Lyon,  3  Barb.  110.  A  conflict  of  evi- 
dence between  the  plaintiff's  witnesses  prevents  a  nonsuit 

CHUMASERO  &  CHADWICK  and  E.  W.  TOOLE,  for  re- 
spondents. 

Appellant  cannot  recover  in  this  action  unless  he  proves 
two  facts.  1.  Title  in  himself  or  the  right  to  the  immediate 
possession  at  the  time  of  the  institution  of  the  suit.  2.  That 
possession  was  unlawfully  withheld  by  respondents  at  that 
time.  The  appellant  failed  to  establish  either  proposition 
and  the  nonsuit  was  properly  granted. 

Appellant  failed  to  show  that  respondents  had  given 
O'Brien  authority  to  act  for  them  in  the  matters  sought  to 
be  proved.  The  agency  must  be  fully  established  before 
the  principal  is  liable  for  the  declarations  of  the  ag^nt. 
The  extent  of  an  agent's  power  is  a  question  of  law  for  the 
court  to  determine.  The  declarations  of  O'  Brien  were  pro})- 


1872.]  HERBERT  v.  KING.  477 

erly  excluded.  Counsel  cited  the  following  cases  in  addi- 
tion to  those  of  appellant :  Garfield  v.  Knights  F.  W.  Co., 
14  Cal.  37  ;  Gerke  v.  California  N.  Co.,  9  id.  258. 

A  nonsuit  should  be  granted  if  the  court  could  not  sus- 
tain a  verdict  on  the  testimony.  Stuart  v.  Simpson,  1 
Wend.  376  ;  Pratt  v.  Hull,  13  Johns.  334  ;  Ring  gold  v. 
Haven,  I  Cal.  115  ;  Ensminger  v.  Mclntire,  23  id.  593. 

WADE,  C.  J.  This  is  an  appeal  from  a  judgment  of  non- 
suit in  the  court  below,  and  the  question  herein  presented 
is  whether  or  not  the  nonsuit  was  properly  entered. 

The  action  is  a  suit  in  ejectment  to  recover  possession  of 
certain  mining  claims  in  Baker  district,  Confederate  gulch, 
in  the  county  of  Meagher,  embracing  three  hundred  and 
ninety  linear  feet  of  said  gulch. 

The  complaint  sets  up  title  in  the  plaintiff,  the  right  to 
immediate  possession,  and  the  possession  of  the  defendants 
at  the  commencement  of  the  suit.  The  answer  denies  the 
title  of  the  plaintiff,  denies  his  possession  and  the  right 
thereof,  and  denies  possession  of  defendants,  and  disclaims 
all  right,  title  and  possession  by  defendants  to  the  grounds 
in  dispute. 

The  case  was  argued  upon  the  hypothesis  that  the  plead- 
ings admitted  the  ownership  of  the  plaintiff,  but  such  is  not 
the  case.  The  amended  answer  denies  that  plaintiff  is  enti- 
tled to  the  possession,  and  avers  that  whatever  right  the 
plaintiff  had  in  the  ground  had  been  abandoned  and  for- 
feited by  him,  and  lost  under  and  by  virtue  of  the  usages 
and  customs  of  the  district  where  the  ground  was  situated, 
so  that  no  presumption  can  arise  upon  the  supposed  fact 
that  plaintiff  was  and  is  the  owner  of  the  ground.  By  the 
pleadings,  title  is  one  of  the  questions  in  issue  by  virtue  of 
the  averment  of  forfeiture. 

In  order  to  maintain  the  action  of  ejectment,  the  plaintiff 
must  prove,  first,  title  in  himself,  or  the  right  to  the  imme- 
diate possession  at  the  time  of  instituting  the  suit.  This 
right  must  exist  at  the  time  the  suit  is  brought.  A  right 
pri.>r  or  subsequent  to  that  time  will  not  avail,  and  second. 


478  HERBERT  0.  KING.  [Aug.  T. 

he  must  prove  that  possession  was  unlawfully  withheld  by 
defendant  at  the  time.  A  failure  to  prove  either  of  these 
essential  elements  will  defeat  the  action  of  ejectment,  and 
if  there  is  no  proof  to  support  a  necessary  and  vital  aver- 
ment of  the  complaint,  a  nonsuit  would  be  properly  granted. 

It  seems  by  the  pleadings  and  proofs  in  this  case,  that  on 
the  9th  day  of  March,  1868,  the  plaintiff  was  the  owner  of 
and  in  the  possession  of  the  mining  ground  in  dispute,  and 
on  that  day  the  plaintiff,  and  defendants  King  and  Gillette, 
entered  into  a  contract  in  writing  concerning  said  ground, 
whereby  said  plaintiff  agreed  to  deliver  possession  of  the 
ground  to  said  defendants  for  the  purpose  of  having  the 
same  drained  and  the  gold  extracted  therefrom,  the  plaintiff 
to  receive  one-half  the  gold  so  extracted.  King  and  Gillette 
were  at  that  time  constructing  a  flume  for  mining  purposes, 
and  the  agreement  so  made  between  the  parties  was  to  be 
null  and  void  providing  said  flume  did  not  strike  bed-rock 
at  the  lower  end  of  said  ground,  and  it  was  further  agreed 
that  King  and  Gillette  should  represent  the  ground  until  the 
fulfillment  of  the  contract. 

In  pursuance  of  this  agreement,  King  and  Gillette  entered 
into  possession  of  said  ground  and  continued  to  construct 
their  flume  until  sometime  in  the  summer  of  1868,  they  had 
reached  the  lower  end  of  said  ground  with  the  flume,  and 
it  is  admitted  that  it  did  not  strike  bed-rock  at  that  point. 

Immediately  after  it  was  found  that  the  flume  failed  to 
strike  bed-rock  the  plaintiff  was  notified  of  the  fact,  for  we 
find  that  in  September,  1868,  he  made  arrangements  with 
one  Leonard  to  represent  the  ground,  the  contract  of  Kin^ 
and  Gillette  to  represent  it  having  expired  upon  the  failure 
to  reach  bed-rock,  and  they  having  ceased  to  represent  th<» 
ground  at  that  time.  It  further  appears  from  the  testimony 
that  for  a  month  or  two  after  King  and  Gillette  ceased  to 
represent  the  ground  by  reason  of  having  failed  to  strike 
bed-rock  with  their  flume,  the  ground  was  unrepresented, 
and  thereby  became  subject  to  relocation  by  any  party  who 
desired  to  take  it  up  and  occupy  it.  This  failure  to  repre- 
sent the  ground,  the  testimony  shows,  forfeited  the  plain- 


1872.]  HERBERT  «.  KING.  479 

tiff's  right  to  it,  and  it  became  subject  to  relocation  like  any 
other  parcel  of  the  public  domain.  If  this  alleged  forfeiture 
was  caused  by  any  wrongful  act  of  King  and  Gillette,  un- 
doubtedly they  would  be  liable  in  damages  therefor,  but  we 
have  nothing  to  determine  now  as  to  that  question. 

It  further  appears  by  the  proof,  that  this  ground  being 
vacant  and  subject  to  relocation  and  entry,  was  taken  up 
and  located  by  Harwood,  Simms  and  Clarke  on  the  16th  of 
November,  1868,  and  was  subsequently  mined  and  worked 
out  by  them. 

The  ground  could  not  be  worked  except  through  the  flume 
of  defendants,  and  the  parties  who  relocated  the  ground 
purchased  the  right  to  work  two  hundred  and  twenty  feet 
thereof  through  this  flume  by  selling  to  King  and  Gillette, 
through  their  agent  O'Brien,  one  hundred  and  seventy  feet 
of  said  ground.  At  the  time  the  ground  was  relocated  by 
Harwood,  Simms  and  Clarke,  the  defendants  King,  Gillette 
and  O'Brien  had  no  interest  therein,  but  subsequently 
acquired  title  to  one  hundred  and  seventy  feet  from  the  relo 
cators.  It  is  further  shown  that  the  plaintiff  was  on  the 
ground  and  worked  there  to  a  certain  extent  in  November, 
1868. 

Thus  far  the  proof  produced  by  plaintiff  tends  directly 
to  defeat  his  case,  and  to  show  that  he  had  neither  the  title 
or  the  right  to  the  possession  of  the  ground  in  controversy, 
but  plaintiff  testifies  in  his  own  behalf  and  says  that  de- 
fendants, King  and  Gillette,  and  others,  had  possession  of 
the  ground  at  the  time  the  suit  was  commenced,  and  I'or 
some  time  afterward,  and  upon  this  testimony  the  plaintiff 
rests  his  claim  that  the  judgment  of  nonsuit  should  be  re- 
versed. 

In  the  light  of  this  testimony  did  the  court  err  in  giving 
judgment  of  nonsuit? 

It  is  undoubtedly  true  that,  in  considering  the  correctness 
of  the  ruling  of  the  court  below  in  granting  a  nonsuit,  this 
court  will  consider  as  proven  every  fact  which  the  evidence 
tended  to  prove.  Cravens  v.  Deinei/,  13  Cal.  42:  Pratt  v. 
Hull.  13  Johns.  33o  ;  Dorst  v.  Bush.  14  Pal.  SO  :  M<-K<-'  v. 


480  HERBERT  v.  KING.  [Aug.  T., 

Oreen,  31  id.  418 ;  Kelley  v.  Kelley,  3  Barb.  419 ;  Dow  v. 
Gould,  etc.,  Mi.  Co.,  31  Cal.  650;  Dero  v.  Cordez,  4  id.  117  , 
Laboc  v.  Karplin,  4  N.  Y.  547. 

Looking  at  the  whole  evidence  produced  by  plaintiff, 
which  is  all  the  evidence  in  the  case,  what  does  it  tend  to 
prove.?  The  weight  of  it  overwhelmingly  preponderates 
against  the  plaintiff.  It  tends  directly  to  show  that  the 
right  of  the  plaintiff  to  the  ground  in  question  had  been 
forfeited  ;  that  third  parties  had  acquired  the  title  thereto, 
and  by  virtue  of  the  title  so  acquired  had  mined  and  worked 
out  the  ground.  It  is  true  that  the  plaintiff  testifies  that 
the  defendants  had  possession  of  the  ground  at  the  time  of 
the  commencement  of  this  action  ;  but  having,  by  his  own 
testimony,  shown  that  the  ground  had  been  forfeited,  and 
that  title  thereto  had  been  acquired  by  third  persons  long 
before  the  suit  was  commenced,  and  that  the  ground  had 
been  fully  worked  out,  such  testimony  is  like  swearing 
against  a  deed  or  a  record.  It  does  not  even  raise  a  pre- 
sumption ;  and  if  a  verdict  had  been  rendered  for  the  plain- 
tiff upon  the  testimony  produced  in  this  case,  the  court, 
undoubtedly,  would  have  been  compelled  to  set  it  aside 
upon  the  ground  that  there  was  no  substantial  evidence  to 
support  it.  But  it  is  not  necessary  to  determine  the  case 
upon  the  testimony  produced,  as  to  defendants  being  in 
possession.  It  will  be  remembered  that  the  plaintiff  must 
show  affirmatively  that  he  is  entitled  to  the  possession. 
There  is  no  affirmative  proof  of  the  kind,  but,  on  the  con- 
trary, the  proof  all  tends  to  show  that  third  parties  had 
acquired  the  title  and  the  right  to  the  possession,  and  that 
the  plaintiff  had  entirely  lost  his  right  to  the  possession. 
Instead  of  showing  title  and  the  right  of  possession  in  the 
plaintiff,  the  proof  tends  directly  to  show  that  right  in 
Harwood,  Simms  and  Clark. 

There  is  much  doubt  as  to  the  competency  of  the  proof 
by  which  this  alleged  forfeiture  was  proven.  The  local 
laws  of  the  district,  if  there  are  any,  upon  the  subject  of 
mining,  were  not  produced  and  proven  in  evidence,  neither 
were  the  customs,  usages  and  rules  of  the  district  shown, 


1872.]  HERBERT  v.  KING.  4&1 

bat  the  plaintiff  produces  testimony  tending  to  show  that 
the  mining  ground  in  question  was  unrepresented  for  live 
or  six  weeks,  and  that  it  thereby  became  subject  to  reloca- 
tion ;  that  this  failure  to  represent  the  ground  forfeited 
the  right  of  plaintiff  therein,  as  well  as  that  of  the  defend- 
ants, if  they  had  any  right  thereto  ;  and  that  the  ground, 
being  subject  to  relocation,  was  taken  up  by  Harwood, 
Siinms  and  Clarke.  This  proof  was  produced  by  plain- 
tiff. The  men  who  relocated  the  ground  worked  it  out  after 
selling  one  hundred  and  seventy  feet  to  King  and  Gillette, 
and  the  plaintiff  made  no  objection  thereto.  If  he  had  not 
forfeited  the  ground  he  could  have  enjoined  their  working 
it ;  but  this  proof,  such  as  it  is,  being  called  out  by  the 
plaintiff,  and  being  against  his  interest,  we  are  inclined  to 
take  it  as  true,  and  to  say  therefrom  that  the  ground  be- 
came forfeited  and  subject  to  relocation  in  November,  1868. 
It  is  certain  by  the  proof  that  the  ground  was  relocated,  and 
was  worked  out  by  the  relocators  unmolested,  and  with  the 
knowledge  of  the  plaintiff,  and  that  he  never  asserted  any 
title  thereto  ;  and  these  facts  alone  raise  a  strong  presump- 
tion that  they  had  a  right,  by  the  laws  of  the  district,  to 
relocate  and  work  it,  and  we  believe  we  are  justified  by  the 
proof  in  saying  that  the  ground  was  abandoned  oy  plain 
tiff  after  King  and  Gillette  ceased  to  represent  it. 

There  is  no  proof  whatever  that  the  plaintiff  was  entitled 
to  the  possession  of  the  ground  at  the  commencement  of 
the  suit.  The  only  proof  on  the  subject  is  the  bare  pre- 
sumption that,  because  the  plaintiff  was  owner  in  1868. 
therefore  he  was  entitled  to  the  possession  in  1870,  when 
the  suit  was  commenced.  This,  indeed,  is  a  violent  pre- 
sumption, when  taken  in  connection  with  plaintiff's  acts, 
in  permitting  the  ground  to  be  relocated  and  worked  by 
third  persons,  with  his  knowledge  and  consent,  before  the 
action  was  brought. 

2.  Did  the  court  err  in  striking  out  the  declarations  of 
O'  Brien  ?     O'Brien  was  agent  for  King  and  Gillette  in  super- 
intending their  flume,  and  any  declarations  made  by  him, 
within  the  scope  of  his  authority,  would  bind  his  principals. 
VOL.  I.— 61 


482  HEBBEET  ».  KING.  [Aug.  T., 

The  extent  of  the  power  of  an  agent  to  bind  his  principal  is 
a  question  of  law  for  the  court. 

If  an  agent,  when  acting  within  the  scope  of  his  author- 
ity, perpetrates  a  fraud  or  wrong  on  another,  or  occasions  a 
consequential  injury,  the  principal  is  liable.  Sto.  on  Agency, 
§§  452,  453,  308  ;  2  Greenl.,  §  68  ;  Foster  v.  Essex,  17  Mass. 
479-507 ;  Williams  v.  Mitchell,  id.  98  ;  Schieffelin  v.  Har- 
vey, 6  Johns.  170 ;  I  Pars,  on  Cont.  73,  74. 

But,  where  the  principal  is  thus  held  liable,  the  agent  must 
have  acted  strictly  within  the  scope  of  his  authority,  so  as 
to  make  the  agent' s  acts  the  acts  of  the  principal,  and  courts 
will  not  tolerate  any  enlargement  of  this  liability,  but  it 
must  be  confined  to  acts  strictly  within  the  scope  of  the 
authority  conferred. 

O'Brien's  authority  was  the  authority  of  a  flume  super- 
intendent, and  any  of  his  acts  necessary  to  the  construction, 
repairing  or  superintending  the  flume,  would  bind  his  prin- 
cipal, but  the  acts  and  declarations  sought  to  be  introduced 
had  no  possible  connection  with  the  flume.  They  were 
entirely  foreign  to  his  authority  as  agent,  and  could  in  no 
manner  bind  his  principal,  and  were  properly  excluded. 

Judgment  affirmed. 

MUBPHY,  J.,  concurred. 

KNOWLES,  J.,  dissenting.  1  agree  to  that  part  of  the  de- 
cision striking  out  declarations  of  O'Brien,  but  think  there 
was  evidence  enough  to  have  warranted  the  jury  in  find- 
ing that  King  and  Gillette  were  in  possession  of  the  upper 
one  hundred  and  seventy  feet  of  the  ground  in  dispute,  and 
that  the  jury  might  have  found  against  them  for  that 
ground,  without  damages,  although  I  am  far  from  holding 
that  I  would  have  found  thus,  had  I  been  the  jury. 


1872.]  SIMONTON  t>.  KELLY.  488 


SIMONTON,  respondent,  v.  KELLY  etal.,  appellants. 

MECHANICS'  LIEN  —  trial — case  affirmed.  The  case  of  Mochon  v.  Sullivan,  ante, 
p.  470,  deciding  that  a  suit  to  foreclose  a  mechanics'  lieu  is  an  equitable 
action  and  must  be  tried  by  the  judge,  sitting  as  a  chancellor,  affirmed. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THIS  case  was  before  the  court  in  August,  1871,  and  is 
reported  ante,  p.  363.  WADE,  J.,  rendered  a  decree  in  favor 
of  Simonton,  in  June,  1872,  and  Kelly  appealed. 

The  cause  came  on  regularly  for  trial  on  June  1 4,  1872, 
and  the  court,  WADE,  J.,  ordered  that  the  same  "be  tried 
in  accordance  with  the  rules  and  practices  established  in 
equity  cases,  and  that  the  same  be  regarded  as  an  equity 
cause,  and,  as  such,  tried  by  the  court."  To  all  of  which 
Kelly  excepted.  The  other  facts  appear  in  the  opinion  and 
the  first  report  of  the  case,  ante,  p.  363.  The  decree  of  the 
court  finds  the  facts  relating  to  the  contract  between  the 
parties  for  the  construction  of  a  certain  building  ;  that 
Simonton  performed  the  same  ;  that  there  was  due  to  him 
from  Kelly  a  certain  sum,  and  that  Simonton  had  acquired 
a  lien  on  the  building  for  the  payment  of  said  sum,  under 
the  statute  securing  liens  to  mechanics.  The  court  then 
ordered,  adjudged  and  decreed,  "that  the  claim  so  due  and 
owing  to  said  plaintiff,  to  wit,  the  sum  of  §1, 211.25,  be  and 
the  same  is  hereby  declared  and  decreed  to  be  a  lien  upon 
the  said  premises  above,  herein  and  in  said  complaint  de- 
scribed. And  it  is  further  ordered,  adjudged  and  decreed, 
that  all  and  singular  the  said  premises  mentioned  and 
described  herein,  and  in  said  complaint,  or  so  much  thereof 
as  may  be  sufficient  to  raise  the  amount  due  the  plaintiff  for 
the  principal,  interest  and  costs  in  the  suit  and  expenses  of 
sale,  be  sold  at  public  auction  by  or  under  the  direction 
of  Rufus  E.  Arick,  Esq.,  one  of  the  masters  in  chancery  of 
this  court ;  that  said  sale  be  made  in  the  town  of  Helena,  in 
said  county  :  that  said  master  gave  public  notice  of  the  time 
and  place  of  such  sal*1,  according  to  thf  course  and  practice 


484  SIMONTON  v.  KELLT.  [Aug.  T.; 

of  the  court,  and  the  law  relative  to  sales  of  real  estate  under 
execution,  and  that  the  plaintiff  or  any  of  the  parties  to  this 
suit  may  become  the  purchaser  thereof  at  such  sale,  and 
that  the  said  master,  after  the  time  allowed  by  law  for  re- 
demption has  expired,  execute  a  deed  to  the  purchaser  or 
purchasers  of  said  premises ;  that  said  master,  out  of  the 
proceeds  of  such  sale,  retain  his  fees,  disbursements  and 
commissions  on  said  sale,  and  pay  to  the  plaintiff,  or  his 
attorneys,  out  of  said  proceeds,  the  costs  in  this  suit,  taxed  at 
$  ,  and  the  sum  of  $1,211.25,  being  the  amount  due 

him  as  aforesaid,  with  interest  thereon  from  this  date,  at 
the  rate  of  ten  per  cent  per  annum,  or  so  much  thereof  as 
said  proceeds  will  pay  of  the  same."  The  decree  further 
ordered,  that  the  master  should  make  a  report  of  the  sale 
to  the  court ;  that  certain  parties  having  an  interest  in  the 
premises  be  barred  and  foreclosed  of  all  equity  of  redemp- 
tion therein  ;  that  the  purchaser  be  let  into  the  possession 
of  the  premises  on  the  production  of  the  master's  deed, 
and  that  "if  the  moneys  arising  from  the  sale  shall  be  in- 
sufficient to  pay  the  amount  so  found  due  to  the  plaintiff 
as  above  stated,  with  the  interest  and  costs  and  expenses  of 
sale  as  aforesaid,  the  master  in  chancery  shall  specify  the 
amount  of  such  deficiency  and  balance  due  to  the  plaintiff 
in  his  return  of  said  sale  ;  and  that,  on  the  coming  in  of  said 
return,  a  judgment  of  the  court  shall  be  docketed  for  such 
balance  against  the  defendants,  Henrietta  Kelly  and  John 
Kelly,  who  are  personally  liable  to  the  said  plaintiff  for  the 
amount  of  such  deficiency,  and  judgment,  with  interest 
thereon,  at  the  rate  of  ten  per  cent  per  annum,  from  the  date 
of  last-mentioned  return  and  judgment,  and  that  the  plain- 
tiff have  execution  therefor." 

E.  W.  TOOLE,  J.  J.  WILLIAMS  and  SHOBEB  &  LOWRY, 

for  appellant. 

The  court  erred  in  refusing  appellants  a  jury  trial.  Acts 
1865,  335,  §  12. 

The  court  erred  in  ordering  a  sale  of  the  property  first, 
and  a  judgment  for  any  deficiency  to  be  entered,  if  the  prop- 


1872.]  SIMONTON  v.  KELLY.  486 

erty  failed  to  bring  the  amount  found  due.  Acts  1866,  336, 
§§  18,  19.  A  special  fieri  facias  must  issue  before  the 
property  is  sold.  If  no  other  property  can  be  found,  then 
the  property  against  which  the  lien  is  established  is  to  be 
sold. 

The  mechanics'  lien  law  is  strictly  a  statutory  proceeding, 
and  is  unknown  to  the  common  law  or  chancery.  The  pro- 
ceedings should  comply  with  the  statute.  Houck  on  Liens, 
i§  17,  47,  58,  67,  69,  70,  71,  75. 

CHUMASERO  &  CHADWICK,  for  respondent. 
No  brief  on  file. 

WADE,  C.  J.  This  was  an  action  to  foreclose  a  mechanics' 
lien,  tried  at  the  June  term  of  the  district  court  of  Lewis 
and  Clarke  county. 

The  defendant  made  a  motion  asking  that  the  cause  be 
tried  to  a  jury.  This  motion  was  overruled,  and  the  cause 
ordered  to  be  and  was  tried  before  the  court  sitting  as  a 
chancellor.  This  action  of  the  court  is  assigned  as  error. 

This  being  a  suit  to  foreclose  a  mechanics'  lien,  is  an 
equitable  action,  and  was  properly  tried  to  the  judge  sitting 
as  a  chancellor,  and  without  the  intervention  of  a  jury.  A 
jury  in  such  a  case  is  only  proper  when  asked  for  by  the 
court,  in  aid  of  its  conscience  upon  any  particular  question 
or  issue  in  the  case. 

This  case  involving  the  same  questions  as  those  decided 
at  this  term  in  the  case  of  Mochon  v.  Sullivan,  reference  is 
here  made  to  that  decision. 

Judgwient  affirmed. 


486  MoMuLLEN  v.  ARMSTRONG.  [Aug.  T., 


MOMULLEN,  respondent,  v.  ARMSTRONG,  appellant. 

PBACTICE  —  dismissal  of  appeal — motion  to  perfect  appeal.  A  motion  to  per- 
fect an  appeal  from  the  probate  to  the  district  court,  which  was  not  supported 
by  affidavits,  and  was  submitted  after  the  appeal  had  been  dismissed  and  a 
final  disposition  of  the  case  had  been  made,  was  properly  overruled  by  the 
court. 

PRACTICE  —  reasons  of  court.  A  correct  decision  will  not  be  reversed,  although 
the  court  erred  in  its  reasons  for  making  the  same. 

PRACTICE — presumption  in  favor  of  ruling  of  court  below.  If  the  record  does  not 
contain  the  facts,  this  court  will  presume  that  a  motion  to  dismiss  an  appeal 
was  properly  granted  by  the  court  below. 

Appeal  from  the  Third  District,  Lewis  and  ClarJce  County. 

McMuLLEN  recovered  judgment  in  the  probate  court  of 
Choteau  county  against  Armstrong,  in  May,  1871.  Arm- 
strong appealed  to  the  district  court  of  Lewis  and  Clarke 
county,  to  which  Choteau  county  is  attached  for  judicial 
purposes.  The  court,  WADE,  J.,  dismissed  the  appeal  in 
November,  1871,  and  refused  to  allow  Armstrong  to  perfect 
his  appeal  on  the  following  ground  :  ' '  That  the  appeal 
could  not  be  perfected  because  the  record  showed  that  the 
probate  court  did  not  send  the  papers  in  the  case,  and  a 
transcript  of  the  docket  to  the  district  court,  within  ten  days 
after  the  notice  of  appeal  and  undertaking  on  appeal  was 
filed  in  the  said  court  of  probate  ;  and  that  the  probate 
court  failing  in  this  duty,  the  right  of  appeal  was  lost." 
The  other  facts  are  stated  in  the  opinion. 

GK  Gr.  SYMES,  for  appellant. 

The  court  below  dismissed  the  appeal  because  the  probate 
judge  of  Choteau  county  did  not  comply  with  the  statute, 
and  send  the  papers  and  a  transcript  of  the  docket  to  the 
clerk  of  the  district  court.  Acts  1869,  69,  §  7. 

Appellant  did  all  that  the  law  required  of  him  in  the 
premises.  He  cannot  be  made  to  suffer  because  the  probate 
judge  did  not  perform  his  duty.  Little  v.  Smith,  4  Scam. 
400  ;  Ewing  v.  Bailey,  id.  420  ;  Sherman  v.  Rolberg,  9  CaL 
17. 


1872.]  McMuLLEx  v.  ARMSTRONG.  48? 

The  appeal  was  perfected  within  thirty  days  as  required 
by  law.  Appellant  would  have  been  entitled  to  a  writ  of 
mandate  to  compel  the  probate  judge  to  send  up  the  record, 
if  he  had  not  already  so  done.  People  v.  Harris,  9  Cal.  571 ; 
Sherman  v.  Rolberg^  id.  17. 

The  cross-motion  in  this  case  amounts  to  a  confession  that 
the  record  was  incomplete  in  certain  respects.  But  the 
court  held  that  the  failure  of  the  probate  judge  to  forward 
the  papers  on  appeal  was  a  defect  that  could  not  bo  remedied. 

SIIOBER  &  LOWRY.  for  respondents. 

To  constitute  an  appeal,  three  things  are  necessary : 
].  Filing  notice.  2.  Service  of  notice.  3.  Filing  the  un- 
dertaking. If  these  steps  are  not  taken  within  the  time 
limited  by  statute,  the  appeal  is  not  perfected,  and  the  court 
appealed  to  has  no  jurisdiction.  Franklin  v.  Reiner,  8 
Cal.  340  ;  Whipley  v.  Mills,  9  id.  641  ;  Hastings  v.  Halleck* 
10  id.  31  :  Voorhies'  Code,  567  d,  571  a. 

The  notice  is  to  the  respondent  or  his  agent.  The  law  re- 
quires a  copy  of  notice  to  be  served  upon  the  adverse  party 
or  his  attorney.  Acts  1869,  68,  §  3.  The  undertaking  must 
be  accompanied  by  the  affidavits  of  the  sureties  that  they 
are  residents  of  the  county,  householders,  etc.  Acts  1869, 
69,  §  6. 

The  transcript  of  the  probate  court  is  not  here.  Respond- 
ent rests  his  case  on  the  grounds  set  forth  in  the  motion  to 
dismiss  the  appeal.  The  cross-motion  of  appellant  was  un- 
authorized. Appellant  should  have  made  a  showing  by 
affidavit  if  he  wished  to  perfect  the  record.  The  cross- 
motion  was  filed  after  the  appeal  had  been  dismissed. 

MURPHY,  J.  This  case  was  brought  to  the  district  court 
of  the  third  judicial  district  on  appeal  from  Choteau  county, 
and  was  there  heard  upon  the  motion  of  the  plaintiff  to  dis- 
miss the  appeal. 

The  motion  was  sustained  in  the  court  below,  and  the  ap 
peal  dismissed.  And  from  the  order  of  dismissal  nnd  judir 
ment  the  defendant  appealed  to  this  court. 


488  MOMULLEN  t>.  AKMSTRONG.  [Aug.  T, 

From  the  bill  of  exceptions  it  appears  that,  on  the  hear 
ing  of  the  plaintiff's  motion  to  dismiss,  the  defendant  sug- 
gested to  the  court  that  he  could  perfect  the  appeal  as  to 
the  defects  set  forth  and  pointed  out  in  said  motion  ;  and, 
after  the  decision  upon  the  same  had  been  made,  on  the  fol- 
lowing morning,  did  move  the  court  for  leave  to  do  so, 
founding  his  motion  upon  affidavits  to  be  thereafter  filed. 

But  the  record  nowhere  shows  that  any  such  affidavits 
were  ever  filed,  or  that  any  showing  whatever  was  made  to 
sustain  said  motion,  and  the  court,  in  the  lawful  exercise  of 
its  acknowledged  discretion  in  the  premises,  refused  and 
disallowed  the  same,  as  it  had  the  undoubted  right  to  do 
under  the  circumstances  of  the  case. 

Upon  the  hypothesis  that  it  was  within  the  power  of  the 
court,  it  was,  at  most,  entirely  discretionary  with  it,  whether 
or  not  it  would  entertain  the  motion  at  all,  or  even  permit 
it  to  be  placed  on  file,  after  a  hearing  and  determination  of 
the  matter  in  issue. 

The  appeal  had  been  dismissed,  a  judgment  for  costs 
entered,  the  parties  sent  out  of  court,  and  a  final  disposi- 
tion made,  not  only  of  the  matter  to  which  the  motion 
related,  but,  in  fact,  of  the  whole  case. 

The  motion  thus  coming  too  late,  and  utterly  unsupported 
at  that,  it  was  not  only  within  the  province  of  the  court,  but 
its  unquestionable  duty  to  disregard  it. 

And  assuming  or  admitting  that  the  reasons  assigned  for, 
and  by  which  the  court  was  governed  in  making  its  ruling, 
are  erroneous,  yet  it  makes  no  difference  if  the  ruling  itself 
is  proper  and  correct. 

It  matters  not  by  what  process  or  method  of  reasoning, 
or  by  what  form  of  argument  or  manner  of  deduction, 
whether  true  or  fallacious,  a  conclusion  is  arrived  at,  pro- 
vided the  conclusion  itself  is  right. 

And  the  mere  fact  of  a  just  and  correct  decision  being 
based  or  founded  upon  an  incorrect  or  false  theory,  will  be 
of  no  avail  to  impair  or  vitiate  the  validity  of  the  decision 
itself. 


1872.]      UNITED  STATES  v.  196  BUFFALO  ROBES.          489 

As  the  record  does  not  bring  up  the  transcript  from  the 
probate  court,  upon  the  incompleteness  and  insufficiency 
of  which  the  motion  to  dismiss  was  predicated,  we  have  no 
means  of  examining  the  grounds  of  said  motion,  and  are, 
in  the  absence  of  such,  bound  to  presume  the  action  of  the 
court  in  sustaining  it,  to  be  correct. 

Therefore,  the  order  and  judgment  below  are  affirmed. 

Judgment  affirmed. 


UNITED  STATES,  respondent,  v.  196  BUFFALO  ROBES,  ETC., 

appellants. 

INDIANS — license  to  trade,  icith —  approval.  A  party  cannot  trade  with  Indiana 
in  the  Indian  country  under  a  license  which  has  not  been  approved  by  the 
commissioner  of  Indian  affairs. 

INDIANS — licence  to  trade  with,  not  transferable.  A  license  to  trade  with  Indiana 
in  the  Indian  country  is  a  personal  privilege  to  the  person  therein  named, 
and  cannot  be  transferred  to  other  parties. 

INDIAN  COUNTRY  —  settlements  of  white  men.  Evidence  that  there  are  settle- 
nifiits  of  white  men  in  a  certain  section  of  Montana,  is  not  admissible  to 
prove  that  it  is  not  a  part  of  the  Indian  country. 

MONTANA  is  INDIAN  COUNTRY.  All  the  country  within  the  limits  of  Montana 
Territory  is  regarded  as  Indian  country,  under  the  laws  of  the  United  States 
regulating  trade  and  intercourse  with  Indian  tribes. 

STATUTORY  CONSTRUCTION  —  repeals  by  implication.  A  statute,  passed  subse- 
quently to  another  act  which  is  incompatible  with  its  provisions,  repeals  by 
implication  the  parts  of  the  first  act  that  are  inconsistent  with  it. 

STATUTORY  CONSTRUCTION  —  organic  net— Indian  intercourse  m-t — nV/Mx  of 
ttettlerx.  The  organic  act  creating  the  Territory  of  Montana  gave  permission 
to  people  to  come  to  the  Territory  and  bring  the  necessaries  and  comforts 
of  life,  and  thereby  repealed  that  part  of  the  law  of  the  United  States  which 
gives  agents  of  the  Indian  department  the  power  to  expel  persons  from  the 
Indian  country,  and  prevent  citizens  from  bringing  within  the  Territory 
the  necessaries  of  life. 

STATUTORY  CONSTRUCTION  — organic  net  —  Indian  license.  The  organic  act  does 
not  repeal  the  law  of  the  United  States  which  requires  persons  to  obtain  a 
license  to  trade  with  Indians  in  the  Indian  country. 

STATUTORY  CONSTRUCTION* —  treat;/  icitli  Itlackfoot  tribe —  Indian  country.  The 
fourth  article  of  the  treaty  made  in  1  &">.">  between  the  United  States  and  the 
Blackfoot  tribe  of  Indians  (11  U.  S.  Stat.  6f>7),  makes  that  portion  of  Mon- 
tana in  which  Camp  Cook  is  situated,  the  home  of  the  Blackfoot  nation,  and 
it  is  Indian  country  in  the  fullest  acceptation  of  the  term. 

VOL.  I.  —  62 


490  UNITED  STATES  «.  196  BUFFALO  ROBES.  [Aug.  T., 

STATUTOKY  CONSTRUCTION  —  organic  act  —  rights  of  Indians.  The  first  section 
of  the  organic  act,  relating  to  the  rights  of  Indians  in  this  Territory,  protects 
the  rights  of  person  aud  property,  which  Indian  tribes  have  acquired  under 
treaties  with  the  United  States. 

STATUTORY  CONSTRUCTION  —  treaty  icith  Blackfoot  tribe— jurisdiction  o/  Terrlr 
tory.  White  persons  living  in  the  Indian  country  within  the  limits  of  Mon- 
tana are  subject  to  the  laws  of  this  Territory.  The  clause  in  the  treaty 
of  1855,  which  gives  the  Indians  of  the  Blackfoot  nation  the  exclusive  con- 
trol over  a  certain  region,  was  adopted  to  prevent  the  United  States  from 
interfering  with  the  customs  and  tribal  relations  of  that  nation. 

STATUTORY  CONSTRUCTION  —  organic  act  —  Indian  regulations.  In  the  proviso 
of  the  first  section  of  the  organic  act,  the  United  States  has  expressly  re- 
served the  right  to  make  regulations  respecting  the  Indians  within  this 
Territory. 

FOKFEITURE  OF  GOODS  IN  INDIAN  COUNTRY  —  license.  Goods  were  legally 
seized  aud  forfeited  under  the  laws  of  the  United  States,  which  were  traded 
for  in  the  Indian  country  in  Choteau  county,  Montana,  by  persons  without 
any  license  therefor  from  the  United  States. 

Appeal  from  the    Third   District,   Lewis   and    OtarJce 

County. 

IN  January,  1871,  Langier  and  Carson,  the  claimants  in 
this  action,  demurred  to  the  libel  of  information,  and  as- 
signed three  causes  therefor,  to  wit:  That  the  goods  were 
not  seized  in  an  Indian  country  ;  that  the  goods  were  pur- 
chased and  procured  in  a  regularly  organized  county,  sub- 
ject to  settlement  and  occupation  by  citizens  of  the  United 
States  ;  and  that  the  libel  did  riot  state  facts  sufficient  to 
constitute  a  case  of  forfeiture.  This  demurrer  was  over- 
ruled by  the  court,  WARREN,  J.,  and  claimants  excepted. 

The  cause  was  tried  in  March,  1871,  by  a  jury  that  re- 
turned a  verdict  for  the  United  States.  After  the  evidence 
for  the  respondent  had  been  introduced,  the  claimants  filed 
their  motion  for  a  nonsuit,  on  grounds  similar  to  those  ay- 
signed  in  the  demurrer.  The  court,  WARREN,  J.,  over- 
ruled the  same,  and  claimants  excepted. 

During  the  trial  the  claimants  excepted  to  the  rulings  of 
the  court  in  refusing  to  allow  them  to  prove  the  contents  of 
a  certain  license  and  receipt ;  and  also  that  the  country 
where  the  goods  were  traded  for  had  been  settled  for  several 
years  by  the  whites ;  that  it  was  in  Choteau  county,  Mon- 
tana ;  that  the  government  was  surveying  the  same  into 


1872.]         UNITED  STATES  v.  196  BUFFALO  ROBES.  491 

townships  and  sections  ;  and  that  the  land  office  in  Helena 
was  receiving  filings  upon  the  same  from  settlers  in  Choteau 
county. 

Claimants  filed  their  motion  for  a  new  trial,  which  was 
overruled,  in  December,  1871,  by  the  court,  WADE,  J.,  and 
claimants  appealed.  The  attorneys  stipulated  that  the  case 
should  be  tried  on  its  merits  as  disclosed  by  the  transcript, 
and  waived  the  notice  of  appeal  and  undertaking.  The 
other  facts  appear  in  the  opinion. 

SHOBER  &  LOWRY,  and  E.  W.  TOOLE  and  W.  F.  SAN- 
DERS, for  appellants. 

The  court  erred  in  overruling  the  demurrer.  Courts  take 
judicial  notice  of  towns,  counties,  etc.  1  Greenl.  on  Ev., 
§  6  ;  Organic  Act,  §  1.  The  organic  act  opened  all  of  Montana 
Territory  to  settlement  by  citizens,  with  all  the  rights  inci- 
dent thereto.  Organic  Act,  §  6,  relating  to  legislative  power  ; 
Acts  1865,  531,  §  8,  organizing  Choteau  county. 

The  information  shows  that  Choteau  county  is  not  Indian 
country.  If  Choteau  county  is  Indian  country,  then  Helena 
is,  and  the  property  of  its  citizens  is  liable  to  confiscation. 
Such  a  doctrine  is  repugnant  to  justice  and  law. 

The  claimants  had  procured  a  license  to  trade,  and  the 
Indian  agent,  Reed,  permitted  them  to  trade  under  it.  1 
Brightly's  Dig.  427,  §§  52-54.  Claimants  acted  in  good 
faith  under  the  permit  of  the  superintendent  of  Indians. 
Forfeitures  are  odious  in  law.  Persons  acting  in  good  faith, 
like  claimants,  should  not  suffer  because  officials  authorized 
them  to  do  what  they  did. 

The  evidence  as  to  the  surveys  and  settlement  of  the 
country,  in  which  the  goods  were  traded  for,  was  compe- 
tent. Would  land  be  Indian  country  after  a  person  had 
entered  a  quarter  section  in  Choteau  county  and  procured 
the  government  title  thereto?  The  law  on  which  respond- 
ent relies  is  not  applicable  to  this  case.  It  relates  to  an 
Indian  reservation,  or  a  country  that  is  strictly  Indian,  in 
which  settlements  by  whites  are  prohibited  by  law.  3  Kent's 
Com.,  Lecture  51. 


492  UNITED  STATES  0. 196  BUFFALO  ROBES.  [Aug.  T., 

If  Choteau  county  is  Indian  country,  within  the  meaning 
of  the  act  regulating  intercourse  between  the  Indians  and 
whites,  courts,  merchants  and  citizens  are  all  trespassers. 
Spirituous  liquors  cannot  be  introduced  into  the  Indian 
country  except  through  the  military  department. 

C.  HEDGES,  United  States  Attorney,  for  respondent. 

The  information  alleges  that  the  acts  complained  of  were 
committed  in  the  Indian  country  in  Choteau  county.  The 
name  of  the  county  was  added  for  local  description.  County 
lines  were  established  by  the  legislature.  The  organic  act 
expressly  reserves  the  rights  of  Indians.  Organic  Act,  §  1. 
It  is  conceded  that  this  place,  where  the  goods  were  traded 
for,  is  under  the  control  of  the  Blackfoot  nation.  The 
treaty  with  that  tribe  has  never  been  extinguished.  The 
legislature  of  Montana  cannot  act  in  the  premises.  See 
Treaty,  11  U.  S.  Stats.  657.  Indian  country  is  defined  in  1 
Brightly' s  Dig.  427,  §  51. 

The  court  properly  refused  to  allow  claimants  to  prove 
the  contents  of  a  license.  The  license  relied  on  was  not 
valid.  It  had  never  been  approved  by  the  commissioner  of 
Indian  affairs.  Regulations  War  Department,  Nov.  9,  1847, 
§  7.  The  proof  of  its  contents  was  immaterial. 

The  evidence  relating  to  United  States  surveys  and  pre- 
emptions in  Choteau  county  was  properly  excluded.  It 
could  only  go  to  the  extent  of  showing  that  the  government 
had  acted  inconsistently  with  treaty  stipulations.  The  force 
of  such  evidence  cannot  be  extended  beyond  the  point  of 
immediate  inconsistency.  Such  evidence,  to  have  any  value, 
must  show  that  the  locality,  where  trading  was  proved  to 
have  been  done,  had  been  surveyed  and  thrown  open  to 
pre-emption. 

The  claimants  should  have  proved  that  they  had  a  valid 
license  to  trade  with  Indians.  In  this  they  failed. 

KNOWLES,  J.  The  facts  appearing  in  the  record  are  that 
the  claimants,  Carson  and  Langler,  traded  for  one  hundred 
and  ninety-six  buifalo  robes,  one  elk  robe,  two  beaver  skins. 


1872.]        UNITED  STATES  v.  196  BUFFALO  ROBES.  498 

one  kit  beaver,  four  wolf  skins,  and  one  buffalo  cow  skin, 
dressed  for  lodge,  at  or  near  a  place  known  as  Camp  Cook, 
within  the  bounds  of  Choteau  county,  Montana  Territory. 
That  T.  C.  Powers  made  application  for  a  license  to  trade 
with  the  Crow  Indians,  near  Camp  Cook,  of  Gen.  Sully, 
the  Indian  superintendent  for  the  Territory,  for  himself  and 
McKnight.  The  license  was  made  out  by  Sully,  but  it 
does  not  appear  that  it  was  ever  approved  by  the  Indian 
commissioner  at  Washington.  It  was  sent  to  Parker,  who 
then  occupied  that  position,  and  by  him  returned  to  Viall, 
the  present  superintendent  of  Indian  affairs,  and  by  him 
lost.  In  this  application  Langler  was  named  as  a  trader  at 
Camp  Cook.  It  also  appears  that  McKnight  had  a  license 
to  trade  with  the  Crow  Indians  at  or  near  Camp  Cook,  but 
it  does  not  appear  that  in  this  transaction  Carson  or  Langler 
were  acting  for  him  or  had  any  connection  with  his  license. 
Powers  testified  as  follows:  "  They  (Carson  and  Langler) 
procured  the  goods  from  me  that  they  traded  for  the  goods 
described  in  the  information.  They  were  general  Indian 
goods  ;  no  whisky.  They  were  to  pay  me  in  furs  for  the 
goods  they  purchased  of  me,  and  were  bringing  them  to  me 
at  the  time  they  were  seized." 

The  attempt  to  prove  the  contents  of  a  license  to  Powers 
and  McKnight  was  properly  refused.  First.  For  the  reason 
that  a  license  is  of  no  validity  to  trade  with  Indians  without 
the  approval  of  the  Indian  commissioner.  See  4  Stats,  at 
Large,  735,  §  2,  and  Regulations  of  War  Department,  Nov. 
9,  1847. 

Second.  Because  a  license  to  Powers  and  McKnight,  al- 
though Langler  may  have  been  named  therein  as  a  trader, 
would  not  have  been  a  sufficient  warrant  for  Carson  and 
Langler  to  trade  with  Indians  in  their  own  right,  as  it  clearly 
appears  from  the  evidence  of  Powers  they  did.  Powers 
and  McKnight  could  not  give  them  authority  to  trade  under 
their  license.  A  license  gives  a  personal  privilege  to  those 
named  therein  to  trade,  and  the  privilege  cannot  be  trans- 
ferred to  others.  It  does  not  appear,  however,  that  ther« 
was  any  attempt  to  do  any  thins;  of  this  kind. 


494  UNITED  STATES  v.  196  BUFFALO  ROBES.  [Aug.  T., 

For  the  same  reason  as  the  last  named,  the  court  properly 
excluded  the  license  to  McKnight.  It  was  not  pretended 
that  Carson  and  Langler  traded  under  it  for  McKnight, 
but  for  themselves,  and  they  could  have  received  no  author- 
ity to  trade  under  it  for  themselves.  Neither  does  it  appear 
that  Carson  or  Langler  were  named  in  it  as  traders.  The 
court  properly  excluded  the  evidence  of  the  settlement  of 
white  men  in  the  region  of  country  where  the  trading  took 
place.  The  question  of  whether  there  were  one  or  thirty 
other  white  men  between  Benton  and  Camp  Cook  would 
not  determine  the  point  as  to  whether  it  was  an  Indian 
country  or  not. 

The  claimants,  then,  \vere  trading  with  the  Crow  Indians, 
at  or  near  Camp  Cook,  and  purchased  the  articles  seized 
from  them,  and  had  no  license  or  authority  to  trade  with 
Indians  from  the  proper  department  of  the  government,  as 
required  by  law,  if  the  country  where  the  trading  took  place 
was  Indian  country. 

If  the  place  where  the  trading  occurred  was  Indian  coun- 
try, then  the  goods  were  liable  to  seizure.  If  it  was  not, 
then  they  were  not.  This,  then,  is  the  question  to  be  de- 
termined —  was  Camp  Cook  in  what  is  known  in  law  as  the 
Indian  country  \ 

Section  1  of  an  act  to  regulate  trade  and  intercourse  with 
Indian  tribes,  and  to  preserve  peace  on  the  frontiers,  reads 
thus: 

"  That  all  that  part  of  the  United  States  west  of  the  Mis- 
sissippi, and  not  within  the  States  of  Missouri  and  Louisana 
or  the  Territory  of  Arkansas,  and  also  that  part  of  the 
United  States  east  of  the  Mississippi  river,  and  not  within 
any  State  to  which  the  Indian  title  has  not  been  extin- 
guished for  the  purposes  of  this  act,  be  taken  and  deemed 
to  be  the  Indian  country.''  4  U.  S.  Stat.  at  Large,  735.  §  1. 

All  the  country  embraced  within  the  limits  of  Montana 
Territory,  according  to  the  provisions  of  this  act,  for  the 
purposes  of  Indian  intercourse,  must  be  classed  as  Indian 
country.  It  is  claimed  by  the  appellants  that  the  organic 
act  of  Montana  repealed  this  law  as  far  as  this  Territory 


1872.]       UNITED  STATES  v.  196  BUFFALO  ROBES.  496 

is  concerned.  It  does  not  do  so  in  express  terms  ;  it  must 
do  so  by  implication  if  at  all.  The  law  does  not  favor  a 
repeal  of  a  statute  by  implication.  A  subsequent  statute 
to  have  this  effect  on  a  previous  one  must  be  wholly  incon- 
sistent and  incompatible  with  it.  It  cannot  be  possible  that 
both  statutes  should  stand  without  a  palpable  conflict  be- 
tween them.  If  one  statute  is  thus  inconsistent  with  an- 
other, then  it  repeals  it  by  implication.  If  one  statute  con- 
flicts with  a  portion  of  another  so  as  to  exhibit  an  inconsist- 
ency," then  the  inconsistent  portion  of  the  previous  statute 
cannot  stand,  and  is  said  to  be  repealed  by  implication. 
When  two  statutes  conflict,  the  subsequent  repeals  the  for- 
mer by  implication  only  so  far  as  it  conflicts  therewith. 

How,  then,  does  the  organic  act  of  this  Territory  create 
such  a  conflict  in  the  Indian  intercourse  act  as  to  render  them 
so  inconsistent  and  contradictory  that  they  both  cannot 
stand,  or  that  that  portion  of  the  Indian  intercourse  act 
which  requires  persons  trading  with  Indians  to  procure  a 
license  must  be  considered  as  repealed.  It  may  be  true  that 
the  creation  of  a  territorial  government  by  that  organic  act 
virtually  gave  permission  to  people  to  come  here  and  live  ; 
and  if  persons  have  permission  to  come  to  this  Territory 
and  live,  they  must  have,  as  a  necessary  result,  the  right  to 
bring  here  the  necessaries  and  comforts  of  life.  Hence,  that 
portion  of  the  Indian  intercourse  act  which  gives  power  to 
the  agents  of  the  Indian  department  to  expel  persons  from 
the  Indian  country,  and  to  prevent  citizens  or  others  from 
bringing  here  the  necessaries  or  comforts  of  life,  must  be 
repealed.  But  I  can  see  no  conflict  between  these  rights 
claimed  under  the  organic  act  and  the  requirements  of  the 
government,  that  those  who  trade  with  Indians  must  have  a 
license  therefor.  It  is  not  at  all  necessary  to  the  comfort 
or  happiness,  much  less  the  existence  of  the  people  of  this 
Territory,  that  they  should  have  the  right  to  trade  with 
Indians  without  license.  They  can  enjoy  about  all  of  the 
rights  of  the  citizens  of  other  communities  without  this 
right,  and  hence  I  am  unable  to  see  how  our  organic  act  sr 


496  UNITED  STATES  v.  196  BUFFALO  ROBES.  [Aug.  T., 

conflicts  with  that  law  requiring  the  Indian  trader  to  pro- 
cure a  license. 

It  is  very  probable,  however,  that  the  portion  of  country 
where  Camp  Cook  is  situated  is  Indian  country,  in  the  fullest 
acceptation  of  the  terra.  In  1855  the  government  of  the 
United  States,  through  its  commissioners,  A.  Cummings  and 
Isaac  I.  Stephens,  made  a  treaty  with  the  Blackfoot  and  a 
number  of  other  tribes.  Article  4  of  that  treaty  reads  as 
follows : 

"The  parties  to  this  treaty  agree  and  consent  that  the 
tract  of  country  lying  within  lines  drawn  from  the  Hell 
Gate  or  Medicine  Rock  Passes,  in  an  easterly  direction,  to 
the  nearest  source  of  the  Muscle  Shell  river ;  thence  down 
said  river  to  its  mouth ;  thence  down  the  channel  of  the 
Missouri  river  to  the  mouth  of  Milk  river ;  thence  due  north 
to  the  forty-ninth  parallel ;  thence  due  west  on  said  parallel 
to  the  main  range  of  the  Rocky  Mountains ;  and  thence 
southerly  along  said  mountains  to  the  place  of  beginning, 
shall  be  the  territory  of  the  Blackfoot  nation,  over  which 
said  nation  shall  exercise  exclusive  control,  excepting  as 
otherwise  provided  in  this  treaty."  See  11  U.  S.  Stat.  at 
Large,  657,  §  4.  Camp  Cook  is  within  the  limits  described. 

I  am  unaware  that  this  treaty  has  ever  been  abrogated  or 
annulled  by  the  United  States.  Certainly  our  organic  act 
ioes  not  purport  to. 

This  is  a  portion  of  section  1  of  our  organic  act : 

"That  nothing  in  this  act  contained  shall  be  construed  to 
impair  the  rights  of  person  or  property  now  pertaining  to 
the  Indians  in  said  Territory,  so  long  as  such  rights  shall 
remain  unextinguished  by  treaty  between  the  United  States 
and  such  Indians,  or  to  include  any  territory  which,  by 
treaty  with  any  Indian  tribes,  is  not,  without  the  consent  of 
said  tribes,  to  be  included  within  the  territorial  limits  or 
jurisdiction  of  any  State  or  Territory,  but  shall  be  excepted 
out  of  the  boundaries  and  constitute  no  part  of  the  Terri- 
tory of  Montana,  until  said  Indians  shall  signify  their  assent 
to  the  president  of  the  United  States  to  be  included  within 
said  Territory,  or  to  affect  the  authority  of  the  United 


1872.]      UNITED  STATES  v.  190  BUFFALO  ROBES.          497 

States  to  make  regulations  respecting  such  Indians,  their 
lands,  property,  or  other  rights,  by  treaty,  law,  or  other- 
wise, which  it  would  have  been  competent  for  the  govern- 
ment to  make  if  this  act  had  never  passed." 

Much  may  be  included  under  the  two  heads,  rights  of 
person  and  rights  of  property.  And  I  think  we  may  safely 
say,  that  the  right  stipulated  in  this  article  of  the  treaty 
above  referred  to,  which  sets  apart  a  particular  described 
country,  and  provides  that  it  shall  be  considered  that  of 
the  Blackfoot  nation,  over  which  they  shall  exercise  exclu- 
sive control,  gives  to  them  a  right  which  this  proviso  in  our 
organic  act  was  intended  to  protect.  By  that  treaty  the 
United  States  government  makes  that  region  of  country  the 
home  of  the  Blackfoot  nation  ;  the  place  where  they  have 
the  right  to  live  and  pursue  their  avocations ;  a  region  to 
which  the  United  States,  by  a  long-continued  policy  in 
treating  with  Indian  tribes,  recognizes  that  the  Blackfoot 
nation  have  some  right,  and  which  must  be  extinguished  by 
treaty.  The  article  seventh  of  the  treaty  of  Cummings  and 
Stevens,  above  referred  to,  provides  that  white  men  may  pass 
through  and  live  in  this  country.  We  are  not  aware  that, 
by  any  treaty  with  the  Blackfoot  nation,  this  region  of 
country  was  to  be  excluded  out  of  any  State  or  Territory  ; 
hence  we  infer  that  it  must  be  considered  as  within  the 
limits  of  Montana  Territory.  The  whites,  then,  who  live  in 
this  region  are  subject  to  the  laws  of  this  Territory  ;  they 
are  within  its  jurisdiction. 

This  may  seem  to  be  inconsistent  with  the  terms  of  that 
treaty,  which  gives  to  the  Blackfoot  nation  the  right  to  exer 
cise  exclusive  control  over  that  region,  except  as  otherwise 
provided  therein. 

It  is  not  to  be  presumed,  however,  that  the  United  States 
intended  to  give  to  that  people  the  right  to  force  white  men, 
who  might  live  within  the  borders  of  their  country,  or  who 
were  passing  through  the  same,  to  comply  with  and  adopt 
their  customs  and  tribal  regulations.  The  United  States 
have  always  claimed  the  right  to  make  those  who  were  liv- 
ing in  the  Indian  country  amenable  to  its  laws. 
VOL.  1  —  63. 


498          UNITED  STATES  v.  196  BUFFALO  KOBES.  [Aug.  !.> 

The  only  thing  that  was  intended  then,  by  this  clause  in 
that  treaty  giving  them  the  exclusive  control  over  that 
region,  was  to  exclude  the  right  of  the  United  States  to 
interfere  therein  with  the  customs  and  tribal  relations  of 
that  nation.  It  may  be  said,  then,  that  this  region  of  country 
is  that  of  the  Blackfoot  nation  —  an  Indian  tribe ;  and,  if 
there  is  any  such  thing  as  an  Indian  country  in  the  United 
States,  it  must  be  classed  as  such. 

There  is  another  clause  in  the  proviso  in  our  organic  act 
above  referred  to,  that  requires  notice.  It  is  that  clause 
which  provides  that  nothing  in  the  act  shall  be  so  construed 
as  to  affect  the  authority  of  the  government  of  the  United 
States  to  make  regulations  respecting  such  Indians,  their 
lands,  property,  or  other  rights,  by  treaty,  law,  or  otherwise, 
which  it  would  have  been  competent  for  the  government  to 
make  if  this  act  had  never  passed. 

Here  is  a  direct  reservation  of  the  right  to  make  regula- 
tions respecting  the  Indians  within  this  Territory.  The 
reason  why  one  statute  is  said  to  repeal  another,  by  impli- 
cation, is,  because  it  is  held  that  the  legislative  body  that 
enacted  the  subsequent  statute  must  so  have  intended  to  do. 
Here,  any  intention  of  congress  to  annul  the  laws  upon  the 
<mbject  of  Indian  intercourse  is  especially  controverted,  by 
a  reservation  of  the  right  to  the  general  government  to 
regulate  it. 

Camp  Cook,  then,  I  consider  for  the  purposes  of  Indian 
intercourse  with  the  whites,  is  Indian  country.  These  goods 
were  traded  for  in  an  Indian  country,  by  persons  who  had  no 
license  to  trade  with  them,  and,  hence,  were  properly  seized. 

Judgment  of  the  court  below  is  affirmed  with  costs. 

Judgment  affirmed. 


1872.]  DAVIS  v.  HENDRIE.  499 


DAVIS,  appellant,  v.  HENDRIE,  respondent 

STATUTORY  CONSTRUCTION  —  act  prescribing  rate  of  interest.  Under  the  seoono 
and  third  sections  of  the  "  Act  to  prescribe  the  rate  of  interest,"  the  legis- 
lature has  given  the  parties  to  promissory  notes  the  power  to  fix  the  rate 
of  interest  that  may  be  collected,  after  the  maturity  of  the  note,  as 
stipulated  damages. 

STATUTORY  CONSTRUCTION — interest  on  contracts.  The  second  section  of  the 
act  relating  to  interest  fixes  the  rate  of  interest  on  contracts  that  are  due, 
where  there  is  no  agreement  as  to  the  rate  thereof,  and  does  not  affect  con- 
tracts that  are  to  become  due. 

STATUTE  —  agreement.     A  statute  cannot  be  varied  by  the  agreement  of  parties. 

PROMISSORY  NOTE  —  interest  after  maturity  —  damages  —  penalty.  A  promissory 
note,  in  which  the  maker  agrees  to  pay  "  interest  after  maturity,  at  the 
rate  of  four  per  cent  per  month  until  paid,"  is  an  agreement  between  the 
parties  to  liquidate  the  damages  for  a  breach  of  the  contract.  This  interest 
is  not  fixed  as  a  penalty  for  the  breach  of  the  contract,  and  the  agreement 
will  be  enforced  by  the  courts. 

Appeal  from  the  T/iird  District,  Lewis  and  Clarke  County. 

JUDGMENT  was  rendered  in  December,  1871,  by  WADE,  J. 
The  facts  appear  in  the  opinion. 

E.  W.  TOOLE,  for  appellant. 

The  Montana  statute  leaves  the  rate  of  interest  on  written 
obligations  to  be  regulated  by  the  parties.  Acts  1865,  535  : 
3  Sto.  on  Cont.  1028. 

The  parties  to  the  note  sued  on  contract,  especial!}7  and 
exclusively,  for  interest  after  maturity.  Is  this  good  ?  Hand 
v.  Armstrong,  18  Iowa,  324 ;  Lucas  v.  Pickle,  20  id.  490 ; 
Payne  v.  ClarJc,  23  Mo.  259  :  Robinson  v.  Kinney,  2  Kan. 
184 ;  Searle  v.  Adams,  3  id.  515 ;  McLane  v.  Abrams,  2 
N"ev.  199;  Kohler  v.  Smith.  2  Oal.  597;  Ludwicftv.  Huntz- 
inger.  5  Watts  &  Serg.  60. 

SHOD Eii  &  LowiiY.    for  respondents. 

The  contract  for  interest  ceases  witli  the  maturity  of  the 
note  An  agreement  to  pay  interest  after  maturity  is  with- 
out consideration.  The  measure  of  damages  on  promissory 
notes  after  maturity  is  the  le^a.l  rate  of  interest,  ten  per 


600  DAVIS  v.  HENDRIE.  [Aug.  T., 

cent  per  annum.      Acts    1865,   535 ;    Talcott  v.   Mastont 
3  Minn.  344 ;  Brewster  v.  WaTcefield,  22  How.  (U.  S.)  118. 

KNOWLES,  J.  The  plaintiff  brought  an  action  to  fore- 
close a  mortgage  executed  to  secure  the  payment  of  a 
promissory  note  for  the  sum  of  $1,725.  A  copy  of  the  note 
is  not  set  forth  in  the  record.  Its  substance  is,  however, 
presented  in  plaintiff's  complaint.  From  this  we  find  that 
the  defendants  promised  to  pay  the  above  sum  in  six  months, 
with  interest  after  maturity  at  the  rate  of  four  per  cent  per 
month. 

The  court  below  held  that  an  agreement  for  interest  was 
invalid  and  void  on  contracts  due,  and  refused  to  allow  the 
same.  To  this  ruling  the  plaintiff  excepted,  and  appealed 
to  this  court,  assigning  this  ruling  as  error. 

The  question  presented  for  determination  in  this  case  is 
the  validity  of  a  contract  for  interest  on  a  sum  of  money 
after  the  same  becomes  due.  Section  2  of  our  statute  upon 
the  subject  of  interest,  reads  as  follows  :  "  Creditors  shall 
be  allowed  to  collect  and  receive  interest,  when  there  is  no 
agreement  as  to  the  rate  thereof,  at  the  rate  of  ten  per  cent 
per  annum  after  they  become  due  on  any  bond,  bill,  promis- 
sory note,  or  other  instrument  in  writing."  See  Laws  of 
1864,  535. 

Section  3  of  the  same  act  reads  thus  :  "  The  parties  to 
any  bond,  bill,  promissory  note,  or  other  instrument  of 
writing,  may  stipulate  therein  the  payment  of  a  greater  or 
higher  rate  of  interest  than  ten  per  cent  per  annum,  and 
any  such  stipulation  contained  in  any  such  instrument  of 
writing  may  be  enforced  in  any  court  of  law  or  equity  of 
competent  jurisdiction  in  this  Territory."  See  Laws  of 
1864,  535. 

It  will  be  seen  by  the  section  first  referred  to,  that  the  law 
only  allows  interest  in  this  Territory  on  a  promissory  note 
after  the  same  has  become  due,  in  the  absence  of  any  agree- 
ment between  the  parties  upon  that  subject. 

The  second  section  referred  to  provides,  that  the  parties 
to  a  promissory  note  may  agree  for  the  payment  of  a  greater 


1872.]  DAVIS  v.  HENDKIK.  601 

rate  of  interest  thereon  than  ten  per  cent.  Taking  these  two 
sections  together  and  the  conclusion  is  inevitable  that  the 
legislative  assembly  intended  to  give  parties  to  promissory 
notes,  and  other  instruments  of  writing,  the  power  to  agree 
upon  the  amount  of  interest  that  might  be  collected  by  way 
of  stipulated  damages  after  the  maturity  of  the  contract, 
and  I  can  see  no  reason  why  a  different  rule  should  be  estab 
lished  in  a  case  where  the  legislative  assembly  enacts  what 
shall  be  the  interest  collected  by  way  of  damages,  and  where 
it  authorizes  the  parties  to  make  a  stipulation  as  to  what 
interest  will  be  proper  as  such  damages.  Interest  allowed 
by  law  on  contracts  due  is  treated  and  considered  as  dam- 
ages for  a  breach  of  the  same  over  and  above  the  amount 
actually  due.  When  the  legislature,  however,  fails  to  enact 
what  shall  be  the  legal  damages  for  a  breach  of  a  contract, 
over  and  above  the  demand  due,  there  is  no  good  reason 
why  the  parties  may  not  agree  as  to  what  shall  be  proper 
damages,  and  if  I  have  not  given  a  wrong  interpretation  to 
section  3  above  referred  to,  the  statute  gives  them  this 
authority.  The  rule  claimed  by  the  respondents  makes  that 
section  read,  "that  parties  to  any  bond,  bill,  promissory 
note,  or  other  instrument  of  writing,  may  stipulate  therein 
the  payment  before  the  same  becomes  due  for  a  greater  rate 
of  interest  than  ten  per  cent  per  annum,  but  after  the}' 
become  due  no  stipulation  of  the  kind  can  be  made."  And 
section  2  must  be  so  construed  as  to  leave  out  the  clause 
when  there  is  no  agreement  as  to  the  rate  thereof,  and  be 
read  as  follows  :  "  Creditors  shall  be  allowed  to  collect  and 
receive  interest  at  the  rate  of  ten  per  cent  per  annum  after 
they  become  due  on  any  bond,  promissory  note,  or  other 
instrument  in  writing."  For,  if  parties  cannot  agree  to  any 
rate  of  interest  after  such  an  instrument  becomes  due,  the 
clause  "where  there  is  no  agreement  as  to  the  rate  thereof," 
can  have  nothing  to  do  with  an  instrument  in  writing  due  ; 
and  yet  the  whole  section  has  reference  to  interest  on  con- 
tracts due  and  not  to  those  to  become  due. 

It  is  claimed  by  the  respondent  that  any  agreement  foi 
interest  on  money  after  the  sum  becomes  due  is  invalid. 


502  DAVIS  0.  HENDRIE.  [Aug.  T., 

and,  in  support  of  this,  we  are  cited  to  the  case  of  Talcott 
v.  Marston,  3  Minn.  344.  The  court  in  that  case  uses  the 
following  language : 

"The  promisor  agrees  to  pay  five  per  cent  per  month 
after  due  till  paid.  If  this  can  be  construed  as  a  contract 
it  is  certainly  not  the  same  in  kind  as  that  embraced  in  the 
first  part  of  the  note.  There  is,  in  fact,  no  consideration  for 
it.  There  is  no  time  limited  for  the  expiration  of  the  con- 
tract. It  is  claimed  that  the  parties  have  agreed  to  pay  five 
per  cent  for  such  length  of  time  as  the  payee  may  choose  to 
forbear.  But  the  fact  that  the  parties  have  agreed  in  writ- 
ing that  the  mone_y  should  be  paid  at  a  day  certain,  ex- 
cludes the  idea  that  there  could  have  been  another  under- 
standing different  from  that  expressed.  This  five  per  cent 
cannot  be  claimed  as  interest,  for  interest  is  the  sum  paid 
for  the  use,  or,  as  is  sometimes  expressed,  for  the  forbear- 
ance of  money.  In  this  case  there  is  no  agreement  that  the 
maker  shall  have  the  use  of  the  money,  or  that  the  payee 
will  forbear  in  collecting  the  money  after  six  months.  The 
last  clause  of  the  note  is  not,  in  terms,  but  in  substance  and 
effect,  an  attempt  of  the  parties  to  liquidate  the  damages  for 
a  breach  of  the  contract.  This  the  law  does  not  permit 
them  to  do.  The  reasoning  upon  which  this  rule  of  law 
has  been  established  is  entirely  unsatisfactory  to  my  mind, 
and  I  think  an  agreement  of  parties,  deliberately  entered 
into  and  fully  understood,  to  liquidate  the  damages  on 
breach  of  contract  to  pay  money,  ought  to  be  enforced  as 
much  as  any  other  contract.  But  the  rule  has  long  since 
been  settled  otherwise,  both  in  England  and  this  country, 
and  the  question  is  not  open  for  discussion.  And  whether 
the  five  per  cent  clause  be  regarded  as  a  penalty  or  liquidated 
damages  the  result  is  the  same." 

I  have  quoted  this  decision  at  such  length  because  it  is 
the  one  most  in  point  cited  by  respondents,  and  it  is  the  one 
upon  which  the  decision  of  the  court  below  was  evidently 
based.  We  have  not  the  Minnesota  statute  upon  interest 
before  us,  and  hence  cannot  tell  to  what  extent  it  corre- 
-}>ond?  with  that  of  this  Territory.  Tf  the  statute  of  that 


1872.]  DAVIS  />.  HKNDKIE.  503 

State  fixes  the  rate  of  interest  on  all  moneys  due,  then  there 
was  nothing  left  for  agreement,  and  I  fully  indorse  that 
opinion  ;  for  parties  by  agreement  cannot  vary  the  law.  If 
the  statute  of  Minnesota  on  this  subject  is  the  same  as  ours, 
and  the  rate  of  interest  on  money  due  is  fixed  by  law  only 
in  the  absence  of  any  agreement  then  I  wholly  dis- 
sent from  the  conclusion  arrived  at  therein.  The  con- 
tract in  this  case  was  for  four  per  cent  per  month  after 
the  note  became  due.  This  was  in  effect  and  substance  an 
agreement  between  the  parties  to  liquidate  the  damages  for 
a  breach  of  the  contract.  Interest  is  often  treated  as 
damages.  When  the  law  gives  interest  on  money  due,  it  is 
not  in  consideration  of  any  forbearance  by  the  payee,  but 
as  damages.  Now,  we  hold  that  the  rule  laid  down  in  the 
decision  above  referred  to,  that  parties  cannot  agree  and 
liquidate  damages  for  a  breach  of  a  contract,  is  not  correct. 
In  Sedgwick,  on  the  measure  of  damages,  we  find  the  fol- 
lowing : 

"  It  is  competent  for  parties  entering  upon  an  agreement 
to  avoid  all  future  questions  as  to  the  amount  of  damages 
which  may  result  from  the  violation  of  the  contract,  and  to 
agree  upon  a  definite  sum  as  that  which  shall  be  paid  to  the 
party  who  alleges  and  establishes  the  violation  of  the  agree- 
ment. In  this  case  the  damages  so  fixed  are  termed  liqui- 
dated, stipulated  or  stated  damages/'  The  author,  in  that 
work,  discusses  this  question  of  liquidated  damages,  and 
refers  to  many  cases  both  in  England  and  America  where 
;ontracts,  fixing  a  sum  as  stipulated  or  liquidated  damages. 
.iave  been  sustained,  and  holding  that  the  courts  will  enforce 
such  a  contract  when  it  is  not  in  the  nature  of  a  penalty. 
We  do  not  believe  that  the  interest  agreed  upon  by  the 
parties  in  the  note  under  consideration,  can,  by  any  fair 
construction,  be  considered  as  a  penalty.  The  rate  of  inter- 
est agreed  upon  was  not  in  excess  of  the  amount  paid  on 
very  many  contracts  executed  at  the  time  of  this  one  in  this 
Territory.  The  agreement  has  none  of  the  earmarks  of  a 
penalty.  A  note  in  Sedgwick.  on  the  measure  of  damages, 


504  DAVIS  «.  HENDRIE.  [Aug.  T. 

in  relation  to  the  decisions  of  the  courts  of  Minnesota,  re- 
ferred to  by  respondents,  holds  this  language. 

"  But  these  rulings  seem  practically  to  conflict  with  the  en- 
larged policy  of  the  statute,  and  perhaps  also  tend  to  discour- 
age that  good  faith  in  dealing  which  it  should  be  the  sedulous 
endeavor  of  the  jurisprudence  to  promote.  They  allow  the 
debtor  by  a  breach  of  his  contract  to  obtain  for  a  time  the 
use  of  his  creditor' s  money,  at  a  rate  less  than  he  agreed  to 
pay,  and  one  which  it  may  be  far  less  than  it  could  be  had 
for  in  the  market,  and  which  no  degree  of  good  faith  would 
have  enabled  him  to  obtain." 

As  we  have  said,  however,  we  have  no  contest  with  the  Min- 
nesota decisions  upon  this  point,  if  their  statute  fixes  the  rate 
of  interest  on  money  due  and  does  not  leave  same  open  to 
contract.  The  case  of  Brewster  v.  Wakefield,  22  How.  (U.  S.) 
118,  cited  by  respondents,  is  not  in  point.  In  that  case  no 
agreement  for  the  payment  of  interest  after  the  note  became 
due  was  made,  and  the  court  held  that  in  the  absence  of  an 
agreement  between  the  parties  as  to  interest  after  the  matu- 
rity of  the  note,  only  legal  interest  could  be  collected. 

In  the  case  of  McLane  v.  Abrams  et  aL,  2  Nev.  204,  the 
court  says  : 

"  As  in  the  absence  of  express  provisions  it  could  not  be 
presumed  that  the  promise  of  a  party  extends  beyond  the 
limit  of  the  written  contract  for  payment,  the  statutes  exist- 
ing in  all  the  States  give  the  party  a  remedy  which  other- 
wise he  probably  would  not  have,  by  allowing  him  to  recover 
legal  interest  on  his  debt  from  the  time  of  its  maturity  until 
it  is  collected,  as  damages  for  the  breach  of  contract.  But 
it  will  not  be  denied  that  when  not  prohibited  by  usury 
laws,  an  agreement  between  parties  fixing  a  higher  rate  of 
interest  or  damage  after  maturity  would  be  enforced." 

The  statute  upon  the  subject  of  interest  in  Nevada  upon 
this  point  is  the  same  as  that  of  this  Territory. 

In  conclusion,  we  would  add  there  is  no  doubt  that  the 
law  allows  parties  to  fix  the  damages  that  may  be  sustained 
for  the  breach  of  a  contract.  The  only  question  to  be  deter- 
mined by  courts  is,  whether  or  not  the  parties  have  fixed 


1872.]  DAVIS  v.  HENDEIE.  505 

the  same  by  agreement.  Where  interest  is  allowed  by  law 
on  contracts  due,  and  where  the  court  awards  interest  for 
the  breach  of  a  contract,  this  interest  is  given  as  damages. 

When  the  law  does  not  fix  the  rate  of  interest  on  contracts 
due,  or  specially  provides,  as  I  hold  the  statute  of  this  Ter- 
ritory does,  that  parties  may  agree  as  to  the  rate  of  interest, 
this  interest  agreed  upon  is  treated  as  damages ;  and,  if  it 
is  not  fixed  as  a  penalty  for  the  breach  of  the  contract,  but 
as  a  just  compensation  therefor,  the  courts  should  enforce 
it.  The  contract  for  interest  in  this  case  cannot  be  treated 
as  a  penalty ;  the  parties  did  not  so  understand  it  them- 
selves; no  fair  interpretation  of  the  contract  can  discover 
any  such  understanding.  If  the  interest  agreed  upon  is  to 
be  regarded  as  a  penalty,  then  the  court  below  erred  in  fix- 
ing the  damages  for  the  breach  at  the  legal  rate  of  interest, 
because  the  statute  fixes  the  interest  only  in  the  absence  of 
agreement ;  and  in  this  case  there  was  an  agreement,  and 
the  question  should  have  been  determined  on  the  testimony 
as  to  what  were  the  actual  damages,  and  the  plaintiff  might 
have  recovered  any  amount  he  could  have  proved,  not 
exceeding  the  four  per  cent  per  month  stipulated  for.  This, 
however,  I  hold,  was  not  fixed  as  a  penalty. 

For  these  reasons  the  judgment  of  the  court  below  is 
reversed  and  the  cause  remanded. 

Judgment  reversed. 

MURPHY,  J.  I  concur  in  the  conclusions  arrived  at  in 
the  above  opinion. 

WADE,  C.  J.,  dissenting.  The  note  sued  upon  in  this  case 
is  a  promise  to  pay  a  certain  sum  of  money  in  six  months 
after  date,  and  then  follow  these  words,  "together  with 
interest  after  maturity,  at  the  rate  of  four  per  cent  per 
month  until  paid,"  and  by  virtue  of  the  foregoing  words 
the  plaintiff  seeks  to  recover  four  per  cent  per  month  upon 
the  principal  of  the  note,  from  and  after  its  maturity  to  the 
time  of  the  rendition  of  the  judgment.  I  do  not  under- 
stand that  he  claims  this  as  liquidated  damages  for  breach 
of  contract,  or  as  a  penalty  for ;  if  any  such  claim  was 
VOL.  I.— 64 


506  DAVIS  c.  HENDRIE.  [Aug.  T., 

made,  it  should  be  properly  plead,  but  he  claims  it  as 
interest,  under  and  by  virtue  of  the  statute  of  the  Territory 
authorizing  parties  to  contract  for  a  higher  rate  of  interest 
than  ten  per  cent  per  annum. 

It  is  true  enough  that  our  statute  authorizes  and  legalizes 
any  rate  of  interest  the  parties  shall  mutually  agree  upon, 
but,  if  a  party  recovers  five  times  the  amount  of  interest 
that  the  legislature  thought  just  and  reasonable,  he  must  do 
so  by  virtue  of  a  contract,  clear,  explicit,  certain,  definite 
and  positive,  and  upon  the  construction  of  which  there  can 
be  no  doubt.  If  a  party  so  victimizes  himself  by  his  prom- 
ise, he  must  do  so  in  unmistakable  terms.  No  doubtful 
construction  can  be  given  in  favor  of  a  contract  of  this 
grasping,  unconscionable  character.  Courts  cannot  supply 
defects  or  deficiencies  in  an  agreement  of  this  character ; 
they  will  not  exhaust  their  ingenuity  to  find  a  consideration 
for  such  an  agreement.  The  party  must  stand  or  fall  by  the 
words  of  his  bond,  for  there  is  no  equity  in  his  cause  to 
supply  defects. 

The  simple  inquiry  presented  by  this  record  is  this.  Do 
the  words  above  set  forth  constitute  a  contract  with  all  its 
elements  and  parts,  and  such  a  contract  as  can  be  enforced  ? 
By  virtue  of  these  words  did  the  maker  of  the  note  agree  to 
pay  interest  for  a  single  moment  after  the  note  became  due, 
and  did  the  payee  agree  to  forbear  and  waive  his  right  to 
collect  the  money  an  instant  after  the  maturity  of  the  note  ? 
We  say  there  was  no  agreement  to  dela}7,  and,  so  far  from 
that,  there  was  an  express  written  agreement  to  the  contrary. 
Can  it  be  said  the  note  is  to  run  for  an  indefinite  time,  simply 
at  the  will  of  one  of  the  parties  against  the  wishes  of  the 
other,  and  in  consideration  thereof  the  four  per  cent  per 
month  is  to  be  paid  \  This  could  not  have  been  contem 
plated  by  the  parties,  for  the  express  and  direct  promise  is 
to  pay  at  the  end  of  six  months,  and  when  that  time  arrived 
payment  could  have  been  enforced  at  once,  notwithstanding 
the  pretended  agreement  as  to  interest,  thus  showing  that 
there  could  have  been  no  valid  agreement  that  the  note  was 
to  run  for  an  indefinite  period  after  its  maturity.  The  fact 


1872.]  DAVIS  c.  HEXDRIK.  507 

that  the  time  of  payment  was  fixed  in  writing  in  the  note, 
precludes  the  idea  that  there  could  have  been  a  parol  verbal 
agreement  to  extend  the  time ;  and  the  only  agreement  to 
extend  the  time  must  be  found  in  the  words  above  set  forth, 
which  say  nothing  about  further  time  and  make  no  intima- 
tion of  delay  in  collecting  the  note. 

Then,  in  the  absence  of  any  agreement  upon  the  subject, 
if  the  note  is  to  run  after  its  maturity  at  four  per  cent  per 
month,  how  long  is  it  to  run  ?  There  is  no  contract  on  this 
subject.  The  minds  of  the  parties  have  not  met  and  mutually 
consented  to  any  thing  upon  this  point ;  on  the  contrary, 
they  fix  a  definite  certain  time  when  the  note  shall  be  paid, 
and  when  that  time  arrives  payment  can  be  enforced  at  once. 
The  maker  says  I  will  pay  this  note  at  the  end  of  six  months, 
and  the  payee  says  you  can  have  the  money  for  just  that 
time  and  no  longer.  This  is  the  contract  of  the  parties, 
simple,  definite  and  certain,  and  we  are  asked  to  extend  this 
six  months'  contract  over  a  period  of  more  than  two  years, 
when  such  a  thing  was  not  dreamed  of  by  either  of  the 
parties,  and  the  court  is  called  upon  to  make  a  contract  for 
the  parties  where  they  have  failed  to  make  it  themselves  and 
to  which  they  are  utter  strangers. 

Then  how  long  shall  the  note  run  after  its  maturity  \  If 
the  court  is  to  make  a  contract  for  the  parties  upon  this  sub- 
ject, it  may  fix  any  arbitrary  time  in  the  future.  The  parties 
have  said  the  money  shall  be  paid  in  six  months,  and  if  there 
is  delay  an  instant  beyond  that  time,  it  is  wholly  at  the  will 
and  pleasure  of  either  party  without  the  consent  of  the 
other.  This  does  not  make  a  contract.  This  would  author- 
ize one  party  to  make  a  contract  for  himself  and  another 
without  the  other's  consent.  There  is  no  mutuality  in  such 
a  contract  and  no  consideration  for  it,  and  to  galvanize  these 
words  as  to  interest  into  a  contract,  the  court  must  say 
that  for  a  sufficient  consideration  the  parties  expressly  agreed 
that  the  note  should  run  after  its  maturity  for  an  Indefinite 
period,  depending  upon  the  will  of  either  party,  when  in 
truth  such  an  agreement  is  a  direct  contradiction  of  the 
written  terms  of  the  note. 


608  DAVIS  v.  HENDBIE.  [Aug.  T., 

This  money  is  sought  to  be  collected  as  interest.  What  is 
interest  ?  It  is  money  paid  for  the  forbearance  of  money. 
Here  there  is  no  agreement  to  forbear  longer  than  six  months. 
At  the  end  of  that  time  the  contract  ceases.  The  parties 
promise  with  express  reference  to  this  time,  and  there  is  no 
contract  to  extend  the  time.  If  there  is  no  agreement  to  for- 
bear longer  than  six  months,  then  the  party  can  only  recover 
statutory  interest  after  that  time.  These  words  as  to  in- 
terest do  not  continue  the  written  contract,  and  they  furnish 
no  protection  as  to  one  of  the  parties  and  no  guarantee  as  to 
the  other.  They  do  not  change,  vary  or  modify  the  absolute 
contract  of  the  parties,  and  are  not  an  agreement  in  and  of 
themselves. 

The  evident  design  of  this  language  was  to  terrify  the 
maker  of  the  note  into  a  performance  of  his  contract  by 
threatening  him  with  pains  and  penalties  if  he  failed,  but 
pains  and  penalties  are  not  enforced  in  this  manner.  If  the 
party  failed  to  comply  with  his  contract,  the  plaintiff  had 
his  remedy.  He  could  have  collected  his  money  at  the 
maturity  of  the  note,  and  if  he  failed  to  do  so  it  is  his  own 
fault  and  his  own  neglect. 

This  four  per  cent  per  month  after  maturity  cannot  be 
claimed  as  liquidated  damages,  for  the  reason  that  the  words 
set  forth  do  not  make  a  contract,  and  for  the  further  reason 
that  liquidated  damages  are  a  certain  fixed  and  definite  sum, 
while  four  per  cent  per  month  for  an  indefinite  period,  de- 
pending upon  the  will  or  caprice  of  one  of  two  parties,  is 
ibout  as  uncertain  as  any  thing  imaginable. 

For  these  reasons  we  think  interest  on  the  note  should  be 
computed  at  ten  per  cent  per  annum  after  its  maturity.  And 
for  these  reasons  I  am  unable  to  agree  with  the  majority  of 
the  court  upon  the  question  in  this  case. 


1872.1  BULLARD   V.    GlLETTE.  509 


BULLARD,  respondent,  v.  GILETTE,  appellant. 


—  failure  to  deny  complaint.  The  material  allegations  of  the  com- 
plaint  are  admitted  if  the  answer  does  not  deny  them. 

UNDERTAKING  ox  APPEAL  —  liability  of  sureties  —  defense  to  action.  If  the  sure- 
ties in  a  written  undertaking  on  appeal  agree  to  pay  a  judgment  that  has 
been  rendered  in  the  district  court,  if  the  same  should  be  affirmed  by  the 
supreme  court  of  the  Territory,  an  action  can  be  brought  against  one  of  the 
sureties  when  the  judgment  has  been  so  affirmed;  and  in  this  action,  the 
facts  that  an  appeal  has  been  properly  taken  from  the  supreme  court  of  the 
Territory  to  the  supreme  court  of  the  United  States,  and  that  proceedings 
have  been  legally  stayed  on  the  judgment,  do  not  constitute  a  defense. 

REMKDY  —  undertaking  —  judgment.  A  creditor  can  pursue  one  or  both  of  hia 
remedies  by  a  suit  on  the  undertaking  or  an  execution  on  the  judgment. 

Appeal  from  tlie  Third  District,  Lewis  and  Clarice  County. 

IN  March,  1872,  the  court,  WADE,  J.,  entered  judgment 
for  Bullard  on  the  pleadings.  The  facts  appear  in  the 
opinion. 

CIIUMASERO  &  CHADWICK,  for  appellant. 

No  action  could  be  commenced  on  the  undertaking  on 
appeal  from  the  district  court  to  the  supreme  court,  until 
the  appeal  from  the  supreme  court  of  the  Territory  to  the 
supreme  court  of  the  United  States  had  been  finally  deter- 
mined, and  a  mandate  had  been  transmitted  from  the  su- 
preme court  of  the  United  States  to  the  supreme  court  of 
the  Territory. 

The  motion  for  judgment  was  made  on  the  pleadings,  and 
thereby  concedes  the  facts  in  the  complaint  and  answer  to 
be  true.  It  is  admitted  that  a  supersedeas  was  granted  and 
all  proceedings  on  the  judgment  were  stayed  until  the  su- 
preme court  of  the  United  States  determined  the  appeal,  and 
that  no  mandate  was  ever  sent  to  the  supreme  court  of  the 
Territory.  Respondent  had  no  right  to  bring  his  action  on 
the  undertaking  sued  on.  Appellant  is  thereby  deprived 
of  the  remedy  of  appeal  given  by  the  organic  act  and  the 
judiciary  act  of  1789.  Organic  Act,  §  9  ;  1  Brightly'  s  Dig. 
257,  258  ;  Judiciary  Act,  ^  2,  o. 


510  BULLARD   V.    GlLETTE.  [Aug.  T. 

If  respondent  can  proceed  on  the  undertaking,  how  does 
the  supersedeas  protect  appellant  ?  If  the  respondent  col- 
lects the  money,  and  the  judgment  is  reversed  by  the  su- 
preme court  of  the  United  States,  what  is  the  remedy  of 
appellant?  If  respondent  has  removed  or  is  insolvent, 
appellant  would  be  remediless.  This  cannot  be  the  law. 

The  New  York  cases  referred  to  by  respondent  are  not 
applicable.  The  New  York  Code  providing  for  appeals  is 
different  from  the  judiciary  act  of  1789. 

No  decision  can  be  found  that  will  support  the  judgment 
in  this  case. 

W.  F.  SANDERS,  for  respondent. 

The  undertaking  sued  on  is  an  agreement  to  pay  money 
on  the  happening  of  a  specified  contingency.  It  is  a  bond 
with  a  condition.  If  the  contingency  has  happened,  the 
agreement  to  pay  has  become  absolute. 

The  answer  denies  nothing  in  the  complaint,  and  confesses 
all.  Appellant  admits  that  the  judgment  is  in  full  force, 
unreversed. 

A  further  appeal  is  no  defense.  The  liability  of  appel- 
lant is  on  his  bond,  which  is  the  measure  of  his  liability. 
It  does  not  stipulate  that  he  shall  not  pay  if  there  is  a 
further  appeal.  The  answer  does  not  allege  that  the  appeal 
was  yet  pending  or  the  judgment  reversed.  Caldwell  v. 
Gans^post,  570. 

The  remedies  on  bond  and  judgment  are  independent. 
Many  v.  Sizer,  6  Gray,  141. 

MURPHY,  J.  This  is  an  action  brought  by  the  plaintiff,  as 
trustee  of  an  express  trust,  against  the  defendant,  as  one 
of  the  sureties  on  an  undertaking  on  appeal,  for  the  recov- 
ery of  the  balance  due  on  a  judgment  rendered  by  the  dis- 
trict court  of  the  third  .judicial  district,  in  the  case  of 
CJiarles  W.  Marden  v.  George  Plaisted  and  M.  R.  WJieelock.. 

From  that  judgment  the  defendants  took  an  appeal  to  the 
supreme  court  of  the  Territory,  for  which  the  defendant  in 
this  action  executed  the  undertaking  sued  upon. 


1872.]  BULLAKD   '0.  GlLETTK  51 1 

On  the  hearing  in  the  appellate  court,  at  the  December 
term,  1868,  the  judgment  below  was  affirmed,  and  a  further 
appeal  taken  to  the  supreme  court  of  the  United  States. 

In  January  last  the  present  suit  on  the  undertaking  was 
instituted,  and  in  March  last  the  case  was  heard  upon 
plaintiff's  motion  for  judgment  upon  the  pleadings,  on  the 
ground  that  the  answer  set  up  no  defense  to  the  cause  of 
action,  the  motion  sustained  and  judgment  rendered  accord- 
ingly in  favor  of  plaintiff  for  $4,325.16,  to  which  defendant 
excepted  and  has  appealed  to  this  court.  And  the  only  ques- 
tion for  our  consideration  is,  whether  or  not  the  answer  is 
a  valid  defense. 

The  complaint,  among  other  things,  alleges  the  execution, 
delivery  and  filing  of  said  undertaking,  "wherein  and 
whereby  the  said  Gilette  and  Nowlan,  for  the  consideration 
aforesaid,  did  severally  undertake  and  promise  and  acknowl- 
edge themselves  severally  bound  in  the  sum  of  $6,500,  that 
if  the  said  judgment  of  said  district  court  so  appealed  from, 
or  any  part  thereof,  should  be  affirmed,  the  said  Plaisted 
and  Wheelock  should  pay  the  amount  directed  to  be  paid 
thereby,  or  the  part  of  such  amount  as  to  which  the  same 
should  be  affirmed,  if  affirmed  only  in  part,  and  all  dam- 
ages and  costs  which  should  be  awarded  against  said  appel- 
lants upon  the  appeal." 

And  it  also  alleges  the  affirmance  of  the  judgment  of  the 
court  below  by  the  appellate  court,  at  the  December  term. 
1868.  and  that  the  same  "yet  remains  of  record  in  said 
court,  in  full  force,  unreversed  and  wholly  unsatisfied." 
except  as  to  the  amount  of  $679.  collected  by  execution  and 
credited  upon  it. 

And  it  further  alleges  the  sale,  assignment  and  transfer  in 
writing,  by  said  Mai-den,  of  "the  judgment  aforesaid,  with 
his  int. -rest  in  the  undertaking  aforesaid,  and  all  moneys 
due  or  to  become  due  thereon,"  to  one  Hill,  from  him  to  on.- 
Charles  \Y .  Marden  and  wife,  and  from  them  to  the  plain 
tiff,  expressly  in  trust,  to  secure  an  indebtedness  from  them 
to  one  Wool  folk,  and  the  acceptance  and  holding  of  said 


612  BULLAED   V.  GlLETTE.  [Aug.  T., 

last-named  assignment  by  said  plaintiff  in  trust  as  afore- 
said. 

The  answer  does  not  deny  these  allegations,  but  sets  up 
in  defense  the  following  facts,  to  wit : 

1.  The  appeal  of  Plaisted  and  Wheelock  from  the  judg- 
ment of  the  supreme  court  of  the  Territory  to  the  supreme 
court  of  the  United  States. 

2.  The  execution  of  a  proper  bond  on  said  appeal. 

3.  The  stay  of  proceedings  on  said  judgment,  and  the 
granting  of  a  supersedeas  by  the  first  appellate  court. 

4.  The  issuance  of  no  mandate  or  remittitur  from  the  last 
to  the  first  appellate  court,  nor  from  that  to  the  said  district 
court. 

5.  The  remaining  of  said  judgment  in  this  court,  stayed 
by  the  order  of  the  court,  by  the  bond  on  appeal  and  by 
the  supersedeas,  and  the  want  of  jurisdiction  of  said  district 
court. 

Now,  do  these  facts  constitute  a  sufficient  defense  or  bar 
to  the  action  ? 

As  will  appear  from  what  has  already  been  shown,  the 
answer,  by  failing  to  deny,  under  our  system  of  pleading, 
for  the  purposes  of  the  action,  thereby  admits  all  the  mate- 
rial allegations  of  the  complaint,  and  upon  which  the  cause 
of  action  is  founded,  but  seeks  to  avoid  or  destroy  their  legal 
effect  by  interposing  and  setting  up  another  and  different 
state  of  facts. 

It  purports  to  be  a  confession  and  avoidance,  or  in  the 
nature  of  such,  yet,  while  it  confesses  every  thing  necessary 
to  a  recovery,  does  it  in  fact  avoid  an}^  thing  ? 

Notwithstanding  tne  averment  of  appeal  to  the  supreme 
court  of  the  United  States,  it  admits  the  judgment,  for  the 
payment  of  which  the  undertaking  was  entered  into,  to  be 
still  "  in  full  force  and  unreversed." 

And,  although  it  avers  that  no  mandate  or  remittitur  has 
been  issued  to  the  courts  below,  yet,  it  fails  to  allege  that 
said  appeal  is  still  pending,  or  that  the  case  has  been 
reversed. 

If  a  further  appeal  is  a  defense  at  all,  it  must  be  a  com- 


1872.]  BULLARD  V.  GlLETTE.  513 

plete  defense,  and  every  fact  necessary  to  make  it  such  must 
be  averred. 

But  can  it  be  a  sufficient  defense  in  this  case?  The 
defendant  must  stand  or  fall  by  this  bond  he  has  volun- 
tarily executed. 

The  obligation  to  pay  grows  out  of  the  term  of  the  under- 
taking itself,  and  it  alone  must  be  the  measure  of  the  defend- 
ant's liability. 

It  is  nowhere  agreed,  that  in  case  of  a  further  appeal,  he 
shall  not  pay,  nor  does  it  show,  or  can  it  be  inferred,  that 
any  such  thing  was  ever  contemplated,  or  if  so,  was  in  any 
way  intended  to  affect  the  obligation. 

From  an  examination  of  the  undertaking,  as  recited  by  the 
complaint,  it  is  found  to  be  an  express  agreement  to  pay 
money  on  the  happening  of  a  particular  event  therein 
specified. 

The  obligation  depends  upon  a  certain  contingency,  and 
must  be  interpreted  by  the  same  rules  of  law  as  govern  the 
construction  of  a  bond  with  a  condition  affixed. 

The  condition  here  is  to  pay,  if  the  judgment  below  should 
be  affirmed  above. 

The  judgment  was  affirmed,  the  payment  has  not  been 
made,  and  the  condition  is  broken. 

The  contingency  no  longer  exists,  the  event  upon  which 
it  depended  has  transpired,  and  the  failure  to  perform  the 
stipulation  is  a  breach  of  the  contract. 

Therefore,  the  liability  of  the  defendant  has  attached,  and 
the  agreement  to  pay  has  become  absolute. 

Arid  as  the  right  of  action  on  a  bond  or  undertaking,  and 
an  execution  on  the  judgment  are  independent  remedies, 
and  the  one  is  not  a  substitution  for  the  other,  and  the 
creditor  may  pursue  either  or  both  at  his  election  (6  Gray, 
141),  this  action  was  properly  commenced,  and  the  court 

had  jurisdiction  of  the  case. 

Judgment  affirmed. 

VOL  L— 65 


514  PARKS  ».  BARKLEY.  [Aug.  T., 


PARKS,  appellant,  t>.  BARKLEY,  respondent. 

PLKADINO — forcible  entry  —  answer — issue  of  title.  In  an  action  of  forcible 
entry  aud  unlawful  detainer,  au  allegatiou  in  the  answer  that  the  defendant 
was  in  the  actual  possession  of  land  and  entitled  to  such  possession,  does 
not  raise  the  issue  of  title. 

PLEADING  —  conclusion  of  law.  The  averment  in  an  answer,  that  a  party  is  en- 
titled to  the  possession  of  laud,  is  a  conclusion  of  law. 

TITLE  TO  LAND  —  prior  appropriation.  The  first  appropriator  of  land  in  this 
Territory  acquires  a  title  to  the  same,  which  is  valid  against  all  persons  ez- 
oept  the  United  States  and  its  grantees. 

PLEADING  —forcible  entry  —  title — gist,  of  action.  In  the  action  of  forcible  en- 
try and  unlawful  detainer,  the  question  of  title  is  au  immaterial  issue ;  and 
the  gist  of  the  action  is  the  actual  possession  of  the  premises  by  the  plain- 
tiff, and  his  forcible  ejection  from  the  same  by  the  defendant. 

Appeal  from  the  First  District,  Jefferson  County. 

IN  May,  1872,  the  court,  MURPHY,  J.,  dismissed  this 
action,  and  Parks  appealed.  The  facts  are  stated  in  the 
opinion. 

G.  G-.  SYMES  and  A.  G.  P.  GEORGE,  for  appellant. 

The  court  erred  in  dismissing  this  action.  The  pleadings 
do  not  raise  the  question  of  title.  The  complaint  is  in  the 
usual  and  proper  form.  2  Estee's  PI.  520. 

The  question  of  title  cannot  arise  in  a  forcible  entry  and 
detainer  case.  The  object  of  the  law  is  to  prevent  the  dis- 
turbance of  the  peace  by  the  forcible  assertion  of  a  private 
right.  The  proof  of  title  does  not  affect  the  case.  Mc- 
Cauley  v.  Wetter ',  12  Cal.  524 ;  Mitchell  v.  Davis,  23  id. 
381 ;  S.  C.,  20  id.  45.  The  fact  of  possession,  and  not  the 
right  of  possession,  is  the  issue  to  be  tried. 

The  averment  of  title  in  this  case  may  be  treated  as  sur- 
plusage, and  a  denial  thereof  raises  no  material  issue.  More 
v.  Del  Valle,  28  Cal.  170.  If  the  plaintiff  relies  on  a  forci- 
ble entry,  the  defendant  will  not  be  permitted  to  introduce 
evidence  of  title  to  the  premises.  Thompson  v.  Smith.  28 
Cal.  532. 

The  question  of  title  is  not  raised  by  the  pleadings  in 


1872.]  PARKS  o.  BAKKLKY.  516 

this  case.  If  a  party  appears,  answers  and  tries  his  case  in 
the  justices'  court,  and  makes  no  motion  to  dismiss  the 
case,  he  cannot  make  such  a  motion  for  the  first  time  in  the 
district  court. 

SHOBEB  &  LOWRY,  R.  H.  WILLIAMS  and  E.  W.  TOOLE, 
for  respondent. 

The  pleadings  put  in  issue  the  possessory  title.  A  justice 
of  the  peace  cannot  inquire  into  this  title.  Organic  Act, 

§9- 

This  is  not  an  action  of  forcible  entry  and  detainer.  No 
demand  for  restitution  is  made.  There  is  no  allegation  that 
respondent  is  in  possession  of  the  premises.  The  complaint 
asks  damages  for  destroying  a  foundation  of  appellant.  It 
is  trespass.  2  Bish.  on  Crim.  Law,  421. 

If  appellant  claims  damages  for  the  destruction  of  a  build- 
ing, he  must  show  the  amount  of  his  interest  in  the  building. 
2Estee'sPl.  409,  §10. 

The  owner  of  land  can  use  such  force  as  is  necessary  to 
prevent  a  person  from  acquiring  possession.  People  v. 
Payne,  8  Cal.  341 ;  McCarty  v.  Fremont,  23  id.  196  ;  Hoag 
v.  Pierce,  28  id.  188. 

When  the  title  to  land  is  involved,  the  justice  must  certify 
it  up.  DicTcson  v.  McGuire,  9  Cal.  46 ;  Cullen  v.  Lang- 
ridge,  17  id.  67  ;  Henderson  v.  Alle-n,  23  id.  519. 

In  a  mere  action  for  damages  to  land  the  question  of  title 
is  involved.  A  party  is  not  answerable  in  damages  to  one 
who  has  no  right  to  the  premises,  and  is  himself  a  tort- 
feasor.  The  title  of  the  owner  would  be  a  good  defense  to 
an  action  brought  for  damages  by  the  wrongful  possessor. 
Hill,  on  Juris.  299. 

An  entry  upon  premises  by  teaiing  down  a  foundation,  is 
a  trespass  to  the  realty.  1  Bish.  on  Crim.  Law,  419. 

KNOWLES,  J.  This  was  an  action  of  forcible  entry  and 
unlawful  detainer.  The  complaint  is  in  accordance  with  the 
precedents,  and  states  facts  sufficient  to  constitute  a  cause  of 
action.  The  cause  was  tried  before  a  justice  of  the  pence. 


516  PARKS  v.  BARKLTSY.  [Aug.  T., 

and  a  verdict  rendered  for  plaintiff  and  judgment  entered 
accordingly.  From  this  judgment  the  defendant  appealed 
to  the  district  court  for  Jefferson  county.  The  defendant 
renewed  a  motion  before  the  district  court  he  had  made  in 
the  justices'  court  for  a  dismissal  of  the  cause  of  action,  for 
the  reason  that  the  question  of  title  had  been  raised  by  tho 
pleadings.  The  court  sustained  this  motion  and  dismissed 
the  cause,  to  which  ruling  the  plaintiff  duly  excepted,  and 
brings  his  appeal  to  this  court,  assigning  this  ruling  as  error. 

The  first  question  for  us  to  determine  is,  was  the  question 
of  title  to  the  real  estate  about  which  this  controversy 
occurred,  raised  by  the  pleadings.  The  complaint  shows 
that  the  plaintiff  was  in  the  actual,  peaceable  and  quiet  pos- 
session of  the  piece  of  land  described  in  the  complaint  on  a 
certain  day,  that  on  that  day,  while  plaintiff  was  in  posses- 
sion thereof  the  defendant,  with  violence  and  strong  hand, 
entered  thereon  and  forcibly  ejected  him.  Nowhere  in  the 
complaint  is  there  any  allegation  of  title,  or  any  allegation 
that,  by  any  construction,  can  be  construed  into  an  allega- 
tion of  title. 

The  answer  denies  the  allegations  of  the  complaint,  and 
alleges  that  the  defendant  was  in  the  actual,  quiet  and 
peaceable  possession  of  the  property  described,  and  that 
while  so  in  possession  the  plaintiff  entered,  and  he  used  only 
such  force  as  was  lawful  and  necessary  in  ejecting  him. 
The  only  allegation  in  the  answer  which  respondent  claims 
raises  the  issue  of  title  is  the  following  : 

"  That  on  the  said  5th  day  of  April,  A.  D.  1872,  and  for 
a  long  time  prior  thereto,  this  defendant  was  in  the  actual, 
peaceable  and  quiet  possession,  and  now  is  entitled  to  the 
actual,  peaceable  and  quiet  possession  thereof  of  all  that 
certain  piece  or  parcel  of  land  in  said  complaint  described, 
save  and  except  about  three  feet  thereof  next  adjoining  the 
hotel  of  said  plaintiff." 

There  is  no  other  allegation  in  the  answer  which  there  can 
be  the  slightest  pretense  made  for  as  raising  the  question  of 
title.  This  one  most  assuredly  does  not.  The  allegation 
that  the  defendant  was  in  the  actual  possession  of  the  prop- 


1872.]  PARKS  x>.  BARKLEY.  517 

erty  does  not  show  that  he  had  title  to  the  property.  The 
defendant  may  be  a  tenant  or  a  trespasser  and  be  in  the 
actual  possession  of  the  property.  The  allegation  of  the 
right  to  the  possession  is  an  allegation  of  a  conclusion  of 
law.  The  right  to  possession  depends  upon  certain  facts, 
and  these  are  not  alleged.  The  allegation  that  a  man  is  in 
the  possession  of  property  does  not  show  that  lie  is  entitled 
to  the  possession.  If  such  an  allegation  as  that  was  suffi- 
cient, all  that  a  party  litigant  would  be  required  to  do  would 
be  to  prove  it,  and  no  matter  how  wrongfully  he  might  be 
in  possession,  how  much  of  a  trespasser,  he  would  be  able 
to  show  that  he  was  entitled  to  the  possession.  The  fact 
that  much  of  our  real  estate  in  this  Territory  has  been  held 
by  a  possessory  title,  makes  no  difference.  The  theory  under 
which  such  titles  are  sustained  is  that  the  first  appropriate! 
does  acquire  title  to  the  land  he  appropriates  as  against  all 
persons  but  the  government  of  the  United  States,  and  that 
should  the  government  of  the  United  States,  or  no  one 
under  it,  ever  assert  title  to  the  property,  lie  would  have 
the  absolute  title.  He  who  has  the  right  to  the  possession 
of  real  estate  has  a  title  in  or  over  it.  And  a  person  to  show 
that  he  is  entitled  to  the  possession  of  real  estate  must  prove 
that  he,  or  some  one  under  whom  he  claims,  had  appropri- 
ated the  ground,  or  had  title  of  which  he  has  possession. 
Prior  possession,  of  course,  is  evidence  of  title,  or  of  appro- 
priation. For  these  reasons  we  do  not  think  the  question  of 
title  was  raised  by  the  pleadings. 

In  the  second  place  I  hold  that  if  the  answer  does  present 
the  issue  of  title,  it  was  an  immaterial  issue.  The  gist  of 
the  action  of  forcible  entry  and  unlawful  detainer  is  :  Who 
was  in  the  actual  possession  of  the  property,  and  was  the 
person  so  in  the  actual  possession  of  the  property  forcibly 
ejected  therefrom  by  the  defendant?  The  object  of  this 
action  is  to  prevent  men  from  taking  the  law  into  their  own 
hands  and  seeking  to  set  themselves  right  by  force.  A  de- 
fendant may  have  the  title  to  property  and  be  justly  entitled 
to  the  immediate  possession  thereof,  and  the  possession  of 
the  plaintiff  ever  so  much  of  a  wrong,  yet  the  law  will  not 


618  DONNELL  v.  HUMPHREYS.  [Aug.  T., 

allow  the  defendant  to  right  himself  by  force.  If  it  was 
permitted,  there  would  be  no  end  to  breaches  of  the  peace 
and  personal  contests  about  the  possession  of  real  propertj^. 
Hence  it  is  no  answer  to  the  charge,  that  while  the  plaintiff 
was  in  the  actual  possession  of  the  property,  the  defendant 
entered  and  forcibly  ejected  him,  for  the  defendant  to  say  I 
owned  the  property  and  had  a  right  to  the  possession  thereof 
at  the  time  and  did  nothing  but  what  was  necessary  to  re- 
gain my  rights.  The  law,  as  I  have  said,  will  not  permit  a 
man  to  regain  his  rights  by  force.  The  law  furnishes  him  a 
remedy  for  his  rights  in  the  action  of  ejectment. 

For  these  reasons  I  think  the  court  erred  in  its  ruling. 
The  judgment  of  dismissal  is  reversed,  and  the  cause  re- 
manded. 

Judgment  reversed. 


DONNELL  et  al.,  appellants,  «.  HUMPHREYS,  respondent. 

EVIDENCE  —  appurtenance — grant.  Extrinsic  evidence  is  admissible  to  show 
the  nature  and  extent  of  an  appurtenance,  which  passes  with  the  principal 
thing  granted. 

APPURTENANCE — grant  of  water  ditch.  A  water  ditch  cannot  be  appurtenant 
to  another  water  ditch  and  pass  as  an  incident  thereto  under  a  grant  of  the 
same. 

PAROL  EVIDENCE  —  written  instrument  —  deed  —  intention  of  parties  —  language,. 
Parol  contemporaneous  evidence  is  not  admissible  to  contradict  or  vary  the 
terms  of  a  valid  written  instrument,  but  such  evidence  is  competent  to 
enable  the  court  to  ascertain  the  intention  of  the  parties  to  the  deed,  and 
make  certain  the  language  respecting  its  subject-matter,  and  give  effect  to 
the  deed. 

GBANT  OF  WATER  DITCH  —  rights  and  incidents.  The  grant  of  a  water  ditch, 
by  general  words,  includes  the  excavated  channel,  the  rights  to  the  water 
by  which  it  is  supplied  and  made  valuable,  and  another  ditch  which  conveys 
the  water  to  it. 

APPURTENANCE —  part  of  subject-matter.  The  law  distinguishes  between  tnat 
which  passes  as  an  appurtenance,  and  that  which  passes  as  a  part  of  the  sub- 
ject-matter. 

DEED  —  extrinsic  evidence  of  ditches  described.  In  determining  what  property 
ia  conveyed  by  a  deed,  which  describes  the  same  as  "  the  ditches  known  as- 


1872.  J  D<XN NELL    V.    II I'M  I' II KEYS.  510 

the  Silver  Bow  Company's  ditches,"  "and  more  particularly  known  as  the 
Humphrey  and  Allison  ditches,"  the  court  should  consider  extrinsic  parol 
evidence,  tending  to  prove  that  the  ditch  known  as  the  "  Park  ditch  "  was 
one  of  the  said  ditches ;  that  it  was  necessary  to  convey  the  water  to  the 
aaid  ditches ;  and  that  the  said  ditches  would  be  of  no  value  without  the 
>l  Park  ditch." 


Appeal  from  Second  District,  Deer  Lodge  County. 

IN  September,  1871,  the  court,  KNOWLES,  J.,  entered 
judgment  in  favor  of  Humphreys.  The  facts  are  stated  in 
the  opinions. 

SHARP  &  NAPTON,  for  appellants. 

The  court  should  interpret  and  construe  the  deed,  after 
knowing  what  property  is  referred  to.     It  is  to  be  construed 
in  the  light  of  surrounding  circumstances  in  order  that  the 
intent  and  meaning  of  the  parties  should  be  perfectly  under 
stood.     1  Greenl.  Ev.,  §  277. 

It  is  not  attempted  to  contradict  or  vary  the  language  of 
the  deed  by  parol  evidence,  but  to  explain  and  ascertain 
the  subject-matter  of  the  same.  I  Greenl.  Ev.,  §286  et  scq. 

After  the  jury  had  reported  the  facts  to  the  court,  relat 
ing  to  the  Park  ditch,  the  water  conveyed  by  it,  the  relation 
oi  the  other  ditches  to  the  same,  and  the  value  of  the  prop- 
erty with  and  without  the  Park  ditch,  the  court  could  in- 
telligibly construe  the  deed  and  gather  the  intent  of  the 
parties  thereto.  The  evidence  tending  to  show  the  above 
tacts  is  material  and  should  have  been  admitted.  Tabor  v. 
Bradley,  IS  N.  Y.  112-115  ;  Myers  v.  Ladd,  26  111.  416  ; 
Grant  v.  Chase,  17  Mass.  445. 

The  Park  ditch  was  conveyed  as  part  and  parcel  of  the 
granted  property,  or  as  appendant  and  appurtenant  to  the 
same.  Such  a  construction  by  the  court  does  not  contradict 
or  vary  the  language  of  the  deed. 

The  court  erred  in  excluding  the  evidence  showing  that 
the  possession  of  the  Park  ditch  was  delivered  to  appel- 
lants at  the  time  the  deed  was  executed.  2  Greenl.  Ev., 
title  Ejectment ;  Huttmerer  v.  Albro,  18  X.  Y.  f>l  ;  Plumb 
v.  Qattaraugus  C.  M.  I.  Co.,  id.  392. 


620  DONNELL  v.  HUMPHREYS.  [Aug.  T., 

The  cases  above  cited  show  this  action  is  properly  brought, 
and  not  an  action  to  amend  the  deed,  as  contended.  No  ob- 
jection having  been  made  in  the  lower  court  to  the  joinder 
of  causes  of  action,  it  cannot  be  made  for  the  first  time  in 
the  supreme  court. 

The  language  of  the  deed  is  simply  "water  from  Silver 
Bow  creek."  That  expression  per  se,  in  reference  to  mining 
water  rights,  needs  explanation.  Frequently  water  rights 
of  a  ditch  are  artificial  and  constitute  its  only  value.  The 
deed  does  not  say  natural  water  of  Silver  Bow  creek  ;  con- 
sequently to  construe  the  deed  to  cover  artificial  water  would 
not  contradict  or  vary  its  language. 

The  admissibility  and  materiality  of  the  evidence  are  the 
only  questions  before  this  court,  and  not  the  effect  of  the 
same. 

Counsel  cited,  as  to  description  of  property  in  a  deed, 
2  Whart.  622-630  ;  4  Kent's  Com.  563-569  ;  4  Cruise's  Dig, 
203,  206,  226. 


CLAGETT  &  Dixotf,  for  respondent. 

The  complaint  claims  the  Park  ditch  as  a  tributary,  not 
as  an  appurtenance  or  right.  The  deed  says  nothing  about 
tributaries. 

The  deed  was  plain  on  its  face,  and  parol  evidence  was 
not  admissible  to  vary  or  contradict  it.  As  to  when  parol 
evidence  is  admissible  to  explain  writing,  see  1  Greenl.  on 
Ev.,  §§  277,  282,  283  ;  2  Pars,  on  Cont.  547,  563,  564.  Parol 
evidence  is  inadmissible  to  vary  the  terms  of  a  written  con- 
tract to  make  it  embrace  property  not  described  therein.  2 
Washb.  Real  Prop.  636  ;  Osborn  v.  Hendrickson,  7  Cal.  282. 

Land  can  never  be  appurtenant  to  land,  and  a  ditch  can- 
not be  appurtenant  to  another  ditch.  1  Bouv.  L.  D.  113  ; 
2  Washb.  Real  Prop.  626  ;  Harris  v.  Elliott,  10  Pet.  53. 

The  cases  of  Tabor  v.  Bradley,  18  N.  Y.  112,  and  Grant 
v.  Chase,  17  Mass.  445,  cited  by  appellant,  are  authorities 
for  respondent.  The  question  of  estoppel  cuts  no  figure  in 
this  case,  nor  does  the  alleged  possession  of  appellants. 

If  the  evidence  had  been  admitted,  could  the  verdict  of 


1872.]  DONNELL  v.  HUMPHREYS.  621 

the  jury,  or  decision  of  the  court,  have  been  different  ?  If 
not,  this  court  will  not  reverse  the  case.  Carpenter  v.  Nor- 
ris,  20  Gal.  437  ;  Merle  v.  Matthews,  26  id.  455. 

The  evidence  showed  that  the  "  Park"  ditch  conveyed  wa- 
ter across  the  main  divide  of  the  Rocky  Mountains  and  emp- 
tied it  into  Silver  Bow  creek,  and  that  the  water  from  it 
could  be  used  in  other  ditches  beside  the  Silver  Bow  ditches  ; 
and  that  there  were  two  ditches,  the  "upper"  ditch  and 
"lower"  ditch,  that  took  water  from  Silver  Bow  creek. 
Could  the  court  have  found  on  this  evidence  that  the  "  Park  " 
ditch  was  a  tributary  to,  or  part  of,  or  appurtenant  to  the 
other  ditches,  or  that  it  could  be  properly  included  in  the 
property  described  in  the  deed?  Appellants  attempt  to 
make  the  deed  include  a  different  and  additional  ditch  to 
the  ones  they  bought.  They  must  rest  in  this  case  upon  the 
language  of  the  deed. 

If  the  Park  ditch  was  intended  to  be  conveyed,  appel- 
lants should  bring  an  action  to  reform  the  deed. 

SHARP  &  NAPTON,  for  appellants,  in  reply. 

Appellants  claim  the  Park  ditch  by  virtue  of  ownership, 
whether  it  is  a  tributary,  an  appurtenance,  or  part  and  par- 
cel of  the  granted  premises.  The  complaint  alleges  owner- 
ship, right  of  possession,  and  describes  the  property. 

A  ditch  with  water  can  be  appurtenant  to  land,  on  the 
same  principle  that  a  reservoir  can  be  an  appurtenance  to 
land.  The  granting  words  of  the  deed  carry  the  feeder  or 
tributary,  which  need  not  be  mentioned.  T/iayer  v.  Payne, 
2  Gush.  328. 

In  Tabor  v.  Bradley,  18  N.  Y.  112,  the  court  held  as  re- 
spondent states,  because  no  such  evidence  was  offered  as 
appellants  offered  in  tiiis  case. 

A  deed  is  construed  most  strongly  against  the  grantor. 
The  evidence  that  was  excluded  showed  that  the  Park 
ditch  was  a  feeder  of  the  other  ditches  and  had  been  so  used 
for  live  years  prior  to  the  sale.  The  grantor  should  have 
expressly  excepted  the  Park  ditch  in  the  deed,  if  he  did  not 
intend  to  convey  it. 
Vol.  I.— 66 


522  DONNELL  ?;.  HUMPHREYS.  [Aug.  T., 

WADE,  C.  J.  This  cause  comes  into  this  court  on  appeal 
from  a  judgment  for  defendants  in  the  court  below.  The 
action  is  trespass,  and  the  complaint  alleges  that  the  plain 
tiffs  are  the  owners  of  and  are  entitled  to  the  possession  of 
certain  water  ditches,  known  as  the  Silver  Bow  Company'  a 
ditches,  and  more  particularly  known  as  the  ditches  for- 
merly owned  by  Humphreys  and  Allison  jointly,  which 
ditches  convey  the  natural  waters  of  Silver  Bow  creek,  and 
the  waters  emptied  into  said  creek  by  what  is  known  as  the 
Park  tributary  of  said  ditches,  to  Butte  City  and  the  placer 
mines  in  that  vicinity,  also  all  the  water  rights,  tributaries, 
flumes,  reservoirs,  rights,  privileges  and  appurtenances 
thereto  belonging  ;  that  on  the  12th  day  of  May,  1871,  the 
defendant  wrongfully  and  unlawfully  cut  and  broke  the 
Park  tributary  of  said  ditches,  diverted  the  water  therefrom 
and  thereby  deprived  the  plaintiffs  of  their  right  to  the  use 
and  enjoyment  thereof. 

The  defendant  in  his  answer  admits  that  the  plaintiffs  are 
the  owners  of,  and  are  entitled  to  the  possession,  free  use 
and  occupation  of  the  ditches,  known  as  the  Silver  Bow 
Ditch  Company's  ditches,  said  ditches  conveying  water 
from  Silver  Bow  creek  to  Butte  City  and  the  placer  mines  in 
that  vicinity,  and  more  particularly  known  as  the  Hum- 
phreys and  Allison  ditches,  together  with  all  the  water  rights, 
flumes,  reservoirs,  rights,  privileges  and  appurtenances 
thereto  belonging,  but  denies  that  the  plaintiffs,  or  either 
of  them,  are  or  at  any  time  have  been  the  owners  of  or  en- 
titled to  the  possession,  use,  occupation  or  enjoyment  of  the 
Park  ditch  or  the  waters  flowing  through  the  same,  or  any 
right  or  privilege  connected  therewith,  and  denies  that  the 
defendant  on  the  12th  day  of  May,  1871,  or  at  any  other 
time,  unlawfully  or  wrongfully  broke  the  said  Park  ditch, 
or  diverted  any  waters  therefrom,  to  which  the  plaintiffs 
are  or  were  entitled.  The  record  shows  that  on  the  23d  day 
of  June,  1870,  the  defendant,  his  wife,  and  Gr.  O.  Hum- 
phreys joined  in  a  conveyance  and  by  their  deed  of  that 
date  conveyed  to  the  plaintiffs  the  following  described  prop- 
erty, situate  in  the  county  of  Deer  Lodge,  Territory  of 


1872.  j  DONNELL  ».  HUMPHREYS.  523 

Montana,  to  wit:  "The  ditches  known  as  the  Silver  Bow 
Ditch  Company's  ditches  ;  said  ditches  carrying  water  from 
Silver  Bow  creek  to  Butte  City  and  the  placer  mines  in  that 
vicinity,  and  more  particularly  known  as  the  Humphreys 
and  Allison  ditches.  The  said  R.  W.  Donnell  &  Co.  to  have 
and  to  hold  each  and  all  of  the  above-described  property, 
together  with  all  the  water  rights,  flumes,  reservoirs,  rights, 
privileges  and  appurtenances  thereto  belonging  or  in  any 
wise  appertaining." 

Upon  the  trial,  testimony  was  offered,  tending  to  explain, 
as  it  was  claimed,  the  subject-matter  of  this  conveyance, 
and  to  show  that  the  Park  ditch  was  known  as  one  of  the 
Humphreys  and  Allison  ditches,  and  to  show  the  relation 
the  Park  ditch  sustained  to  said  ditches.  Objection  was 
made  to  the  introduction  of  this  testimony,  and  the  objec- 
tion was  sustained.  This  action  of  the  court  is  assigned  as 
error. 

By  this  testimony,  it  was  sought  to  prove  that  the  ditches 
known  as  the  Silver  Bow  Ditch  Company's  ditches,  and  more 
particularly  known  as  the  Humphreys  and  Allison  ditches, 
were  made  up  of,  and  included  what  was  known  as  the 
•-lower  ditch,"  the  "Park  ditch,"  and  the  "upper  ditch  ;" 
that  the  lower  ditch  was  built  first,  then  the  Park  ditch,  and 
afterward  the  upper  ditch  ;  that  the  upper  and  lower  ditches 
''any  water  from  Silver  Bow  creek  and  its  tributaries  to  the 
placer  mines,  in  the  vicinity  of  Butte  City  ;  that  the  Park 
ditch  carries  water  from  a  branch  of  the  Bolder  to  Silver 
Bow  creek  ;  that  it  was  built  to  supply  the  upper  and  lower 
ditches  with  water  ;  that  water  from  the  Park  ditch  was  used 
through  the  lower  ditch,  until  the  building  of  the  upper 
ditch,  which  was  in  contemplation  at  the  time  the  Park  ditch 
was  built ;  that  the  waters  from  the  Park  ditch  have  always 
Ho  wed  through  the  upper  and  lower  ditch,  and  been  used  on 
the  placer  mines  of  Butte  City  ;  that  the  Park  ditch  is  a 
feeder  of  the  upper  and  lower  ditches,  and  that  the  three 
ditches  are  known  and  reputed  as  the  Humphreys  and  Alli- 
son, or  the  Silver  Bow  Ditch  Company's  ditches  :  that  the 
plaintiffs  took  possession  of  the  Park  ditch,  a<  well  as  of 


624  DONNELL  v.  HUMPHREYS.  [Aug.  T. 

the  upper  and  lower  ditches,  at  the  date  of  the  deed  ;  that 
at  the  time  the  Park  ditch  was  constructed,  its  waters  could 
not  be  used  for  mining,  excepting  through  the  upper  and 
lower  ditches,  but  at  the  date  of  the  deed  it  could  have  been 
used  through  other  ditches,  but  never  had  been  used  up  to 
that  time,  except  through  the  upper  and  lower  ditches. 

Was  the  rejection  of  this  testimony  error  ? 

It  will  be  observed  that  this  evidence  shows  that  the  three 
ditches  in  question  were  generally  reputed  and  known  as 
the  Silver  Bow  Ditch  Company's  ditches,  and  were  more 
particularly  known  as  the  Humphreys  and  Allison  ditches  ; 
that  the  Park  ditch  was  built  to  supply  the  other  ditches 
with  water ;  that  the  waters  of  Park  ditch,  up  to  the  date 
of  the  deed,  had  always  been  conveyed  through  the  upper 
and  lower  ditches,  and  used  for  mining  purposes  in  the 
vicinity  of  Butte  City,  and  at  the  time  said  Park  ditch  was 
constructed,  its  waters  could  not  have  been  used  for  mining 
purposes  in  any  other  manner. 

1.  In  the  light  of  this  testimony,  supposing  it  had  been 
received  in  evidence,  can  it  be  said  that  the  Park  ditch  is  an 
appurtenance  of  the  upper  and  lower  ditches,  and  that  a 
grant  of  those  ditches  would  carry  with  it  the  Park 
ditch  ? 

It  is  undoubtedly  true  that  whatever  is  properly  appur- 
tenant to  the  principal  thing  granted  passes  with  it,  and,  in 
order  to  show  the  existence  and  the  nature  and  extent  of 
such  appurtenances,  extrinsic  evidence  would  be  competent, 
as,  if  A  should  grant  to  B  his  farm,  with  all  the  privileges 
and  appurtenances  thereto  belonging,  and  attached  to  his 
farm  was  an  appurtenant  easement  in  the  form  of  a  right 
of  way  over  the  lands  of  C,  such  grant  would  carry  with  it 
this  right  of  way,  and  its  existence  and  extent  could  be 
shown  by  parol  evidence.  It  then  becomes  important  to 
know  what  an  appurtenance  is,  and  to  ascertain  what  things 
can  and  do  attach  to  the  principal  thing  granted. 

A  thing  appendant  or  appurtenant  is  defined  to  be  ua 
thing  used  and  related  to  or  dependent  upon  another  thing 
more  worthy,  and  agreeing  in  its  nature  and  quality  with 


1872.]  DONNELL  v.  HUMPHREYS.  525 

the  thing  whereunto  it  is  appendant  or  appurtenant  "  It 
signifies  some  thing  appertaining  to  another  as  principal, 
and  which  passes  as  an  incident  to  the  principal  thing. 

A  thing  corporeal  cannot  properly  be  appurtenant  to  a 
thing  corporeal,  nor  a  thing  incorporeal  to  a  tiling  incorpo- 
real ;  so  that  land  cannot  be  appurtenant  to  land.  Leonard 
v.  White,  6  Mass.  8  ;  Harris  v.  Elliott,  10  Pet.  53  ;  Co.  Litt. 
121  ;  Jackson  v.  Hathaway,  15  Johns.  447. 

It  follows  that  things,  in  their  nature  equal,  and  of  like 
character  and  grade,  can  never  be  appurtenant  to  each 
other,  for  the  common  as  well  as  the  legal  meaning  of  the 
word  implies  inferiority  and  dependence,  so  that  a  water 
ditcli  could  never  become  appurtenant  to  another  ditch  of 
like  character,  and  pass  as  an  incident  thereto,  for  the  same 
reason  that  one  farm  will  not  pass  as  an  appurtenance  to 
another. 

This  testimony  shows  that  the  park  ditch  is  of  the  same 
character  of  property,  and  is  equal  to  the  upper  or  lower 
ditch,  and  therefore  it  is  that  it  cannot  pass  under  this  grant 
as  an  appurtenance  to  those  ditches.  With  equally  as 
good  reason  it  might  be  said  that  the  upper  or  lower  ditches 
would  pass  as  an  appurtenance  to  the  Park  ditch. 

2.  Is  the  language  of  the  deed  such  that  the  court  ought 
to  have  received  extrinsic  evidence  in  aid  of  its  construc- 
tion, and  could  such  evidence  have  been  introduced  to  show 
that  the  Park  ditch  passed  by  the  deed  as  a  part  of  the  sub- 
ject-matter of  the  conveyance  ? 

It  has  long  been  settled,  and  requires  no  citation  of 
authorities  to  assert  as  established  law,  that  when  parties 
have  deliberately  put  their  contracts  in  writing  in  such  terms 
as  import  a  legal  obligation,  without  uncertainty  or  am- 
biguity as  to  the  object,  nature  and  extent  of  their  agree- 
ments, it  is  conclusively  presumed  that  the  whole  of  the 
contract  was  reduced  to  writing  ;  and  all  oral  testimony  aa 
to  what  was  said  before,  at  the  time  of,  or  after  it  was  com- 
pleted, is  rejected,  because  it  would  tend  to  substitute  an 
oral  for  a  written  contract,  In  other  words,  parol  contem- 
poraneous evidence  is  inadmissible  to  contradict  or  vary 


526  DONNELL  o.  HUMPHREYS.  [Aug.  T. 

the  terms  of  a  valid  written  instrument.     1  Greenl.  on  Ev., 
§  275  ;  2  Phil,  on  Ev.,  §  350  ;  2  Stark,  on  Ev.,  §  544. 

And  so  the  intent  of  the  parties  must  be  gathered  from 
what  is  written  rather  than  from  parol  evidence,  but  the 
language  of  the  instrument  may  be  construed  by  the  light 
of  surrounding  circumstances,  and,  so  far  as  possible,  the 
court  may  put  itself  in  the  place  of  the  parties,  and  may 
interpret  the  language  from  this  standpoint,  but  nothing 
can  be  added  to  or  token  from  the  written  words. 

So  extrinsic  parol  evidence  is  always  admissible  to  give 
effect  to  a  written  instrument,  by  applying  it  to  its  proper 
subject-matter,  by  proving  the  circumstances  under  which 
it  was  made,  thereby  enabling  the  court  to  put  themselves 
in  the  place  of  the  parties  with  all  the  information  possessed 
by  them,  the  better  to  understand  the  terms  employed  in 
the  contract,  and  to  arrive  at  the  intention  of  the  parties. 
Heldebrand  v.  Fogle,  20  Ohio,  147  ;  1  Greenl.  on  Ev. .  § 
277. 

Instruments  are  to  be  interpreted  according  to  their  sub- 
ject-matter, and  parol  evidence  may  be  resorted  to  in  order 
to  ascertain  the  nature  and  qualities  of  the  subject  to  which 
the  instrument  refers.  Whatever  indicates  the  nature  of  the 
subject,  is  a  just  medium  of  interpretation  of  the  language 
of  the  parties,  and  is  also  a  just  foundation  for  giving  the 
instrument  an  interpretation  when  considered  relatively, 
different  from  that  which  it  would  receive  if  considered  in 
the  abstract,  1  Greenl.  on  Ev.,  §  286. 

It  is  necessary  to  the  validity  of  a  grant  that  the  thing 
granted  should  be  capable  of  being  distinguished  from  all 
other  things  of  the  kind,  but  it  is  not  necessary  that  the  de- 
scription should  be  such  as  to  identify  the  object  without 
the  aid  of  extraneous  testimony.  And  when  the  descrip- 
tion alludes  to  facts  beyond  the  deed,  parol  evidence  may 
be  offered,  not  to  contradict  the  description,  but  to  locate 
the  deed  upon  the  land.  McChesney  v.  WainwrigTit,  5 
Ohio,  452  ;  Eggleston  v.  Bradford,  10  id.  312  :  Barton  v. 
Morris.  Id  id.  408. 

TD  tin-  case  at  bar,  there  is  a  disagreement  between  the 


1872.]  DONNELL  0.  HUMPHREYS.  527 

parties  as  to  the  application  of  the  deed  to  its  proper  sub 
ject-matter,  the  plaintiff  claiming,  under  the  words  of  the 
grant,  that  it  includes  the  Park  ditch,  and  the  defendants 
denying  this  proposition. 

The  deed  purports  to  convey  to  plaintiffs  the  ditches 
known  as  the  Silver  Bow  Ditch  Company's  ditches,  convey- 
ing water  from  Silver  Bow  creek  to  the  placer  mines  at  Butte 
City,  and  more  particularly  known  as  the  Humphreys  and 
Allison  ditches. 

Looking  at  this  language  alone,  was  it  possible  for  the 
court  to  say  how  many  ditches  were  known  as  the  Humphreys 
and  Allison  ditches,  or  that  the  Park  ditch  was  not  known 
as  one  of  those  described  in  the  deed,  or  that  the  Park  ditch 
did  not  carry  water  to  the  mines  of  Butte  City,  or  that  the 
Park  ditch  was  not  necessary  in  order  to  enable  the  other 
ditches  to  carry  water  there  ? 

If  the  Park  ditch  was  one  of  a  system  of  ditches  by  which 
water  was  conveyed  from  Silver  Bow  creek  to  the  mines  of 
Butte  City,  and  if  this  ditch  was  necessary  to  the  successful 
working  of  this  system,  and  was  built  in  connection  with 
other  ditches  to  accomplish  this  purpose,  and  if  this  fabric 
of  ditches  was  known  as  the  Humphreys  and  Allison  ditches, 
or  as  the  Silver  Bow  Ditch  Company's  ditches,  and  each  of 
those  ditches  were  necessary  to  the  usefulness  of  the  others, 
and  the  destruction  of  one  would  have  rendered  the  whole 
of  no  value,  then  in  the  construction  and  interpretation  of  the 
words  of  the  grant  these  facts  should  have  been  shown  to 
the  court.  Those  things  are  certain  that  can  be  made  cer- 
tain, and  it  seems  to  us  that  the  language  of  the  deed,  which 
is  uncertain  in  itself,  can  be  made  certain  by  the  aid  of  ex- 
trinsic evidence. 

What  ditches  are  known  as  the  Humphreys  and  Allison 
ditches  ?  Was  and  is  the  Park  ditch  one  of  those  so  known 
and  designated  ?  What  relation  does  the  Park  ditch  sus- 
tain to  the  other  ditches  ?  Did  the  Park  ditch  supply  the 
other  ditches  with  water,  and  were  the  others  rendered  valu 
able  thereby,  and  would  they  be  worthless  unless  fed  and 
supplied  by  the  Park  ditch? 


628  DONNELL  0.  HUMPHREYS.  [Aug.  T.. 

In  order  to  work  out  an  intelligent  and  just  construction 
and  interpretation  of  the  words  of  the  grant,  all  these  ques- 
tions should  have  been  answered.  The  court  will  not  sc 
interpret  a  deed  as  to  compel  a  party  to  pay  a  large  sum  oi 
money  for  property  that  is  worthless,  when,  by  arriving  at 
the  true  meaning  of  the  parties  by  the  aid  of  surrounding 
circumstances,  such  an  interpretation  might  be  given  by 
applying  the  deed  to  its  proper  subject-matter,  as  would 
make  the  property  equal  to  the  sum  paid.  If  the  upper 
and  lower  ditches  were  valueless  without  the  Park  ditch, 
and  all  three  were  known  as  the  Humphreys  and  Allison 
ditches,  then  we  must  suppose  that  the  party  paying  more 
than  $6,000  for  the  Humphreys  and  Allison  ditches,  and  the 
party  receiving  that  sum  in  consideration  of  the  convey- 
ance, intended  to  convey  the  three  ditches  in  question,  for 
the  value  of  each  would  so  depend  upon  the  other  as  to 
make  the  three  one  property,  one  subject-matter.  But  we 
only  intend  to  speak  of  the  competency  of  proving  these 
extrinsic  facts  in  aid  of  the  construction  to  be  given  to  the 
deed,  and  it  would  seem  that  the  language  of  the  deed  is 
such  that  the  court  could  better  construe  and  interpret  its 
meaning  by  putting  itself  in  the  place  of  the  parties,  and 
judging  of  the  language  used  by  the  light  of  surrounding 
circumstances. 

It  is  claimed  that,  by  the  terms  of  the  conveyance,  the 
ditches  granted  must  carry  water  from  Silver  Bow  creek  to 
Butte  City,  and  that  the  grant  is  limited  by  these  words  to 
the  upper  and  lower  ditches,  and  that  the  Park  ditch  is 
thereby  excluded.  But  if  the  ditches  so  carrying  water  are 
supplied  by  the  Park  ditch,  and  this  ditch  is  absolutely 
necessary  to  produce  this  supply,  not  that  this  ditch  simply 
contributes  to  the  supply,  but  that  it  furnishes  the  whole 
of  the  supply,  and  the  ditches  conveyed  are  thereby  made 
valuable,  and  would  be  rendered  worthless,  if  this  feeder 
was  cut  off,  then  it  certainly  would  become  important  that 
the  court,  in  giving  a  construction  to  the  deed,  should  know 
these  facts,  and  thereby  arrive  at  the  intention  of  the  parties. 
By  the  terms  of  the  grant  the  ditches  conveyed  icust  carry 


1872.]  DONNELL  v.  HUMPHREYS.  629 

water.  This  is  the  object  and  purpose,  and  if  the  Park 
ditch  is  absolutely  necessary  to  that  end,  then  it  is  covered 
by  the  conveyance.  Whoever  grants  a  thing,  is  supposed 
also  to  grant  that  without  which  the  grant  itself  would  be 
of  no  effect.  2  Washb.  on  Real  Prop.  622  ;  Broom's  Max. 
362. 

And  in  order  to  show  that  the  grant  would  be  of  no  effect 
unless  it  carries  the  particular  thing,  parol  evidence  is  ad- 
missible showing  this  extrinsic  circumstance  to  enable  the 
court  to  correctly  interpret  the  language  and  thereby  arrive 
at  the  true  intention  of  the  parties. 

The  Park  ditch  carries  water  from  a  branch  of  the  Bolder 
to  Silver  Bow  creek. 

It  was  built  for  a  purpose.  It  was  not  constructed  simply 
to  increase  the  waters  of  the  creek  without  some  ulterior 
design,  but  it  was  built,  in  connection  with  the  upper  and 
lower  ditches,  as  a  part  of  a  system  of  works  by  which 
water  can  be  carried  from  Silver  Bow  creek  to  the  mines  of 
Butte  City.  Water  for  these  mines  was  the  purpose,  and 
the  Park  ditch  was  necessary  to  that  purpose,  and  at  the 
time  it  was  built  the  waters  thereof  could  only  be  used  for 
this  object.  Its  building  was  labor  lost  except  it  be  used 
with  the  other  ditches.  It  formed  part  of  the  works  known 
as  the  Humphreys  and  Allison  ditches. 

The  plaintiffs  offered  to  prove  all  these  facts  to  aid  the 
court  in  construing  the  language  of  the  deed,  and  we  believe 
this  evidence  would  have  materially  aided  the  court  in 
arriving  at  a  just  interpretation  thereof. 

Suppose  the  Park  ditch  supplied  all  the  waters  of  the 
upper  and  lower  ditches,  and  but  for  this  supply  these 
ditches  would  remain  dry  from  one  end  of  the  year  to  the 
other,  could  it  be  contended  that,  under  the  language  of  this 
grant,  the  plaintiffs  intended  to  pay  §6,000,  and  the  defend- 
ant intended  to  receive  that  sum  for  dry  ditches,  with  no 
supply  of  water  and  utterly  worthless?  We  think  not. 
But,  without  the  aid  of  extrinsic  evidence,  a  construction 
might  be  given  to  the  words  of  the  grant  that  would  work 
out  this  result.  And  here  we  say  again,  that  lie  who  grants 
a  thing  is  supposed  to,  and  does  grant  that  without  which 
VOL  I.  — 67 


530  DONNELL  v.  HUMPHREYS.  [Aug.  T., 

the  grant  is  worthless,  and  he  who  grants  a  ditch  is  sup- 
posed to  grant  not  only  the  excavated  channel,  but  also  his 
rights  to  the  water  by  which  it  is  supplied  and  made  valu- 
able. And  if  this  supply  comes  from  a  second  ditch,  the 
conveyance  of  the  ditch  thus  supplied,  by  general  words, 
would  carry  the  second  ditch  as  part  and  parcel  of  the 
first. 

3.  Does  the  excluded  testimony  tend  to  show  that  the 
park  ditch  passed  as  a  part  and  parcel  of  the  subject- 
matter  of  the  conveyance,  and  was  it  competent  for  that 
purpose  \ 

It  is  important  to  observe  the  distinction  between  what 
passes  as  an  appurtenance  and  what  as  part  and  parcel  of 
the  subject-matter.  Things  equal  to  their  principal  cannot 
pass  as  appurtenant  to  it.  Things  corporeal  cannot  pass  as 
appurtenant  to  things  corporeal,  a  ditch  to  a  ditch,  nor  land 
to  land.  But  it  frequently  happens  that  land  passes  as 
parcel  of  the  subject-matter,  although  not  particularly  men- 
tioned or  described  in  the  deed.  In  order  that  it  may  thus 
pass,  it  must  be  necessary  to  the  enjoyment  of  that  which 
is  granted,  and  must  be  intended  to  pass  with  it,  and  must 
be  used,  reputed  and  known  as  part  and  parcel  of  the  prin- 
cipal thing. 

The  conveyance  of  a  manor,  a  messuage,  or  farm,  known 
by  a  certain  name,  and  including  distinct  tenements,  build- 
ings or  fields,  which  have  been  used  with  the  principal  thing 
and  reputed  parcel  of  it,  would  pass  under  the  general  name 
of  the  manor,  messuage  or  farm.  Grant  v.  Chase.  17  Mass. 
446;  Taber  v.  Bradley,  18  N.  Y.  112. 

By  the  grant  of  a  messuage,  or  house,  the  garden  and 
curtilage  pass.  Co.  Litt.  5.  If  a  man  grant  a  boilery  of 
salt,  the  land  passes.  Co.  Litt.  4. 

In  the  case  of  Archer  v.  Bennett,  1  Lev.  131,  it  was  found 
by  special  verdict  that  A  being  seized  of  a  mill  and  kiln, 
at  the  end  of  the  close  wherein  the  mill  stood,  granted  the 
mill,  and  the  question  was  whether  the  kiln  passed,  and  it 
was  held  that  it  would  have  passed,  if  it  had  been  found 
that  the  kiln  had  been  necessary  to  the  mill. 


1872.]  DO.VNELL  o.  EU.MPUUEYS.  531 

So  the  grant  of  a  mill  carries  with  it  the  use  of  the  water 
by  which  it  is  worked,  the  flood  gates,  dam,  and  all  things 
necessary  for  its  use,  as  well  as  the  soil  and  freehold  of  the 
land  on  which  it  stands  and  over  which  it  projects,  and  such 
grant  may  embrace  land  adjoining  it  which  is  necessary  for 
its  use,  and  is  actually  used  with  the  mill.  The  adjacent 
land,  in  such  cases,  passes  as  parcel  of  the  principal  thing 
granted.  2  Washb.  on  Heal  Prop.  623  ;  Blake  v.  Clark,  6 
Me.  436 ;  ForbusTi  v.  Lombard,  13  Mete.  109 ;  Shepp. 
Touchst.  89. 

So,  it  seems  that  lands  under  certain  circumstances  pass  as 
parcels  of  the  subject-matter,  when  not  named  or  described 
in  the  deed.  And  if  the  grant  of  a  mill  carries  with  it  the 
water  by  which  it  is  worked,  the  dam,  flood-gates,  races,  as 
well  as  the  soil  upon  which  it  stands,  and  adjacent  lands  for 
lumber  yards,  etc.,  and  if  the  grant  of  a  farm,  known  by  a 
particular  name,  carries  with  it  buildings  and  fields,  which 
have  been  used  with  the  principal  thing,  and  if  the  grant 
of  a  house  carries  with  it  the  land  upon  which  it  stands, 
together  with  the  curtilage  and  garden,  before  these  things 
can  pass  as  part  of  the  principal  thing,  or  as  parcel  of  the 
subject- matter,  it  becomes  necessary  that  extrinsic  evidence 
should  point  out  the  relation  the  parcel  sustains  to  the  sub- 
ject-matter. Without  the  aid  of  such  evidence,  the  words 
of  the  grant  must  govern,  and,  thereby,  the  object  of  the 
conveyance  be  defeated.  Extrinsic  evidence  must  point 
out  the  parcel,  show  its  relation  to  the  principal  thing,  and 
show  it  necessary  to  the  enjoyment  of  the  thing  granted. 
We  must  inquire  what  has  been  used  witli  the  principal 
thing,  and  what  has  been  reputed  and  known  as  parcel  of 
it,  and  for  this  purpose  and  for  the  purpose  of  learning  the 
extent  of  the  grant,  and  to  apply  the  deed  to  its  proper 
subject-matter,  extrinsic  evidence  is  competent. 

The  Park  ditch  may  be  a  parcel  of  the  Humphreys  and 
Allison  ditches,  or  it  may  not.  That  depends  upon  the  re- 
lation it  sustains  to  those  ditches.  If  it  stands  in  the  same 
relation  to  the  upper  and  lower  ditches,  as  a  mill-race  does 
to  a  mill,  that  is,  if  it  is  necessary  to  the  use  and  enjoyment 


632  DONNELL  v.  HUMPHREYS.  [Aug.  T.; 

of  those  ditches,  and  they  would  be  worthless  without  it, 
and  if  it  was  generally  reputed  and  known  as  one  of  the 
Humphreys  and  Allison  ditches,  the  nit  is  covered  by  the 
words  of  the  grant,  and  passes  by  the  deed. 

The  reason  why  things  pass  as  parcel  of  the  principal 
thing,  although  not  named  in  the  deed,  is  because  they  are 
necessary  to  the  use  and  enjoyment  of  the  thing  granted, 
and  because  parties  may  be  supposed  to  intend  to  make 
these  grants  beneficial  and  useful.  Extrinsic  evidence  is 
competent  to  apply  the  description  in  the  deed  to  its  proper 
subject-matter,  and  to  show  the  extent  of  the  grant,  by  show- 
ing what  is  necessary  to  the  enjoyment  thereof,  as  by  showing 
that  a  separate  field  belongs  with  the  farm,  or  that  a  water- 
right  belongs  to  a  mill,  and  so  for  the  same  reason  and  for 
the  same  purpose,  it  may  be  shown  that  the  Park  ditch  is 
one  of  the  Humphreys  and  Allison  ditches,  and  that  without 
the  Park  ditch,  the  granted  ditches  would  be  of  no  value. 

We,  therefore,  think  the  evidence  offered,  showing  the 
relation  of  the  Park  ditch  to  the  upper  and  lower  ditches, 
and  showing  that  the  three  ditches  were  known  as  the  Hum- 
phreys and  Allison  ditches,  was  competent  evidence  to  aid 
the  court  in  giving  the  proper  construction  to  the  language 
of  the  deed. 

With  all  the  testimony  before  it,  the  court  may  arrive  at 
the  same  conclusion  as  without  it,  but  with  this  we  have 
nothing  to  do,  and  we  only  speak  of  the  right  to  introduce 
evidence  in  aid  of  the  interpretation  of  the  language  used, 
and  we  have  no  doubt  of  the  materiality  of  the  testimony 
offered  for  this  purpose. 

Judgment  reversed. 

MURPHY,  J.,  concurred. 

KNOWLES,  J.,  dissenting.  I  fully  concur  in  that  portion 
of  the  opinion  of  the  court  in  this  case  upon  the  point  that 
the  Park  ditch  cannot  be  considered  as  an  appurtenance  to 
the  Humphreys  and  Allison  ditches,  carrying  water  from 
Silver  Bow  creek  to  Butte  City  and  the  placer  mines  in  that 
vicinity.  But  I  entirely  dissent  from  that  portion  of  that 


1872.]  DONNELL  v.  HUMPHREYS.  533 

opinion  that  holds  that,  by  any  construction  of  the  deed 
from  the  Humphreys  to  R.  W.  Donnell  &  Co.,  the  Park  ditch 
can  be  embraced  therein  and  treated  as  part  of  the  subject- 
matter  of  that  conveyance.  The  description  of  the  property 
conveyed  by  that  deed  is  set  forth  in  the  following  language  : 
"  The  ditches  known  as  the  Silver  Bow  Company's  ditches, 
said  ditches  conveying  water  from  Silver  Bow  creek  to  Butte 
City,  and  the  placer  mines  in  that  vicinity,  and  more  par- 
ticularly known  as  the  Humphreys  and  Allison  ditches." 

The  Park  ditch,  as  appears  by  the  record,  conveys  water 
from  the  eastern  side  of  the  main  ridge  of  the  Rocky  Moun- 
tains to  the  western  side,  and  usually  discharged  its  waters 
into  Silver  Bow  creek,  some  distance  above  the  head  of  the 
Humphreys  and  Allison  ditches,  carrying  water  to  Butte  City. 

The  Park  ditch,  it  appears,  was  also  known  by  that 
name,  although  it  was  classed  as  one  of  the  Humphreys  and 
Allison  ditches,  or  as  one  of  the  Silver  Bow  Company*  s 
ditches,  Humphreys  and  Allison  being  the  persons  who  com- 
posed that  company. 

The  words  of  general  description  in  the  deed  referred  to, 
were  "The  Silver  Bow  Company's  Ditches"  and  the 
"Humphreys  and  Allison  Ditches." 

These  general  words  of  description,  however,  I  hold,  were 
limited  by  those  of  the  particular  description,  and  these 
were  "carrying  water  from  Silver  Bow  creek  to  Butte  City, 
and  the  placer  mines  in  that  vicinity."  The  particular 
description  in  a  deed  always  controls  and  limits  the  words 
of  general  description. 

Now,  if  testimony  can  so  aid  a  court  that,  in  the  construc- 
tion of  that  deed,  it  can  make  the  Park  ditch,  carrying  water 
from  Boulder  creek,  on  the  east  side  of  the  Rocky  Moun- 
tains, to  Silver  Bow  creek,  on  the  western  side  of  the  Rocky 
Mountains,  and  longer  than  either  of  the  other  ditches,  one 
of  the  Silver  Bow  Company1  s  ditches,  carrying  water  from 
Silver  Bow  creek,  which  is  entirely  on  the  west  side  of  the 
Rocky  Mountains,  to  Butte  City,  and  the  placer  mines  in 
that  vicinity,  then  a  court  aided  by  testimony,  can  do  more 
than  any  oth<T  human  p<nv>r. 


534  DONNELL  v.  HUMPHREYS.  [Aug.  T., 

The  considerations  that  seem  to  impel  my  brother  judges 
to  hold  that  testimony  might  produce  this  miraculous  effect, 
is,  that  possibly  without  the  Park  ditch  the  other  two  ditches 
might  be  valueless ;  and,  therefore,  it  could  not  be  pre- 
sumed that  the  plaintiffs  would  have  purchased  these  two 
ditches  without  the  Park  ditch,  and  paid  $6.000  therefor. 
If  the  consideration  of  whether  a  piece  of  property,  particu- 
larly described  in  a  deed,  would  be  valueless,  without  it 
was  joined  with  another  piece  of  property  not  described  in 
the  deed,  are  to  so  influence  a  court,  in  construing  the  deed, 
as  to  place  the  other  piece  of  property  within  its  terms  as 
part  of  the  subject-matter,  then  I  see  no  reason  why  the 
rule  may  not  be  carried  a  little  farther  ;  and  if  another  piece 
of  property  would  render  the  piece  described  in  a  deed  more 
valuable  than  it  would  without  it,  then  it  should  be  consid- 
ered as  embraced  within  the  terms  of  the  deed,  and  conveyed 
with  the  other  as  part  of  the  subject-matter. 

If  A  conveys  to  B  a  lot  of  ground,  and  it  is  found  that 
another  lot  adjoining  it  will  render  it  valuable,  or  more 
valuable,  then  the  second  lot  would  be  construed  as  em- 
braced within  the  terms  of  the  deed  as  part  of  the  subject- 
matter  thereof.  The  bare  statement  of  such  a  rule  shows  its 
fallacy.  I  am  sure  that  in  all  the  cases  where  property  has 
been  held  to  bo  conveyed  as  part  of  the  subject-matter,  it 
has  been  embraced  within  the  description  of  the  deed. 
When  a  water-mill  has  been  conveyed,  the  mill-dam  and 
race  have  always  been  treated  as  a  part  of  the  mill  and  em- 
braced within  the  general  description  of  such  property,  and 
nothing  was  contained  in  the  deed  which  exhibited  the  fact 
that  it  was  excluded.  Here,  however,  this  is  not  the  case. 
The  conveyance  was  limited  to  the  Humphreys  and  Allison 
ditches,  carrying  water  from  Silver  Bow  creek  to  Butte  City 
.u  id  the  placer  mines  in  that  vicinity,  and  the  Park  ditch 
does  not  carry  water  from  Silver  Bow  creek,  or  to  Butte  City, 
and  the  placer  mines  in  that  vicinity. 

For  these  reasons  I  dissent  from  the  views  of  my  brother 
judges. 


1872.1  WOOLMAN     C.    (jAHIJlNGER.  636 


WOOLMAN  et  al.,  respondents,  «.  GAREINGEE  et  al., 

appellants. 

CASK  AFFIRMED  —  le(jul  and  equitable  relief  in  the  same  action.  The  oaae  of  Uall- 
agher  v.  Basey,  ante,  457,  affirmed.  Legal  and  equitable  relief  canuot  be 
obtained  in  the  same  proceeding,  and  a  judgment  for  damages  for  the  diver- 
sion of  water,  and  which  perpetually  enjoins  parties  from  using  the  water, 
is  irregular  and  void. 

WATEI:  —  chunye  of  /dace  of  use  and  purpose.  The  prior  appropriator  of  water 
for  mining  purposes  at  a  certain  point  can  extend  his  ditch  and  use  the 
water,  to  the  extent  of  his  appropriation,  at  any  other  point  for  the  same 
or  a  different  purpose. 

WATER  —  date  of  appropriation  —  diligence.  The  appropriation  of  water  by 
parties,  who  prosecute  the  work  on  their  ditch  with  reasonable  diligence, 
dates  back  to  the  commencement  of  the  work. 

WATER  —  notice  of  change,  of  use  by  appropriator.  The  prior  appropriator  of 
water,  who  posts  notices  of  his  appropriation  near  the  stream  and  immedi- 
ately constructs  his  dams  and  ditches,  is  not  required  to  give  any  actual 
notice  to  subsequent  appropriators  of  his  intention  to  extend  his  ditches, 
and  reclaim  the  waste-water  from  his  mining  operations,  and  use  the  water 
at  another  place. 

WATER —  subsequent  appropriutor  —  abandonment.  The  subsequent  appropria- 
tor of  water,  who  acquires  the  privilege  of  using  the  waste-water  of  the 
prior  appropriator,  can  be  deprived  of  the  same  at  any  time,  unless  the 
water  has  been  returned  into  the  original  channel  without  any  intention 
of  recapture. 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

THE  decree  was  entered  in  this  action  in  March,  1871,  by 
WARIIEX,  J.  At  the  trial,  Gamnger  excepted  to  the  fol- 
lowing instructions,  which  were  given  by  the  court: 

•The  plaintiffs  are  not  required  to  take  notice  of  the  in- 
tention of  the  defendants  to  curry  or  convey  the  waters  of 
the  said  gulch  beyond  the  point  specified  in  the  notice, 
unless  such  intention  was  indicated  by  such  acts  as  would 
convey  to  a  reasonable  person  notice  of  such  intention,  or 
actual  notice  given  to  them,  prior  to  acquiring  any  inter- 
im'dinte  rights. 

•The  record  notices  introduced  of  defendants'  claims  to 
the  water  in  controversy  are  not  notice  to  plaintiffs  by  rea- 
son of  being  recorded,  and  it  devolves  on  defendants  to 
show  Actual  notice  of  such  record,  or  actual  execution  of 


536  WOOLMAN  t>.  GARRINGER.  [Aug.  T., 

the  work  described  in  it,  prior  to  any  intermediate  rights 
plaintiffs,  or  their  predecessors,  may  have  acquired  to  the 
water  in  controversy  in  order  to  affect  the  plaintiffs  with 
such  notice. 

If  the  jury  believe,  from  the  evidence,  that  plaintiffs,  or 
their  predecessors  in  interest,  were  not  notified  of  the  de- 
fendants' intention  to  carry  the  water  in  controversy  out  of 
the  natural  channel  of  the  stream  to  some  point  designated, 
and  that  the  defendants  had  done  no  act  sufficient  to  indi- 
cate to  a  reasonable  person  such  intention,  and  that  tb« 
plaintiffs,  or  their  predecessors  in  interest,  took  up  said  water 
after  it  was  returned  to  McClellan  gulch,  and  carried  and 
conveyed  the  same  in  and  upon  their  ranches  for  some  use- 
ful purpose,  then  said  defendants  have  no  right  thereafter 
to  so  change  or  divert  said  water  as  to  deprive  the  plaintiffs 
of  the  use  thereof. 

If  the  jury  do  not  believe,  from  the  evidence,  that  the  de- 
fendants did  such  acts  as  would  convey  to  a  reasonable 
person  a  notice  of  their  intention  to  convey  the  waters  of 
McClellan  gulch  to  such  point  as  would  not  reach  plaintiffs' 
ditch,  then  it  devolves  upon  said  defendants  to  show  an 
actual  notice  to  said  plaintiffs  of  their  intention  so  to  carry 
the  same,  prior  to  plaintiffs'  appropriation. 

If  the  jury  believe,  from  the  evidence,  that  the  defendants 
conveyed  the  water  in  controversy  to  what  is  known  as 
Union  Bar  or  McClellan  gulch,  and  permitted  the  same  to 
flow  back  into  said  gulch  without  giving  the  plaintiffs,  or 
their  predecessors  in  interest,  any  notice  of  their  intention 
to  carry  it  elsewhere,  and  that  their  acts  and  works  did  not 
indicate  to  a  reasonable  person  an  intention  to  carry  it  else- 
where, and  that  said  plaintiffs,  or  their  predecessors  in  in- 
terest, before  such  notice  or  acts,  appropriated  and  took 
possession  of  the  waters  so  returned  to  said  McClellan 
gulch,  then  defendants  have  no  right  thereafter  to  divert 
said  waters  from  plaintiffs. 

If  a  person  appropriates  water  to  be  used  at  a  particular 
point,  and  there  uses  it,  and  then  permits  it  to  flow  back 
into  its  natural  channel  and  e:o  on  down  its  accustomed 


1872.]  WOOLMAN  v.  GARRINGEB.  637 

course,  persons  below  may  appropriate  the  same  so  as  to 
make  it  a  vested  right,  and  no  subsequent  change  of  the 
prior  appropriation  can  be  made  so  as  to  deprive  such  ap- 
propriators  of  the  use  of  such  water. 

If  the  jury  believe,  from  the  evidence,  that  the  defendants 
had  no  ditch,  or  survey  for  a  ditch  to  the  stream  of  water 
in  dispute,  and  also  that  they  had  no  notice  or  marks  upon 
said  stream  indicating  an  intention  to  appropriate  it  an<?. 
carry  it  to  a  point  where  it  would  not  flow  back  into  the 
natural  channel  of  said  stream  above  the  point  of  plaintiff's 
ippropriation,  at  the  time  plaintiffs'  predecessors  in  interest 
made  the  appropriation  of  said  water,  then  you  will  find  for 
the  plaintiffs  in  the  number  of  inches  they  are  entitled  to, 
and  such  damages  as  they  have  proven  they  have  sustained, 
not  exceeding  the  sum  of  $5,000." 

The  other  facts  appear  in  the  opinion. 

W.  F.  SANDERS,  W.  E.  CULLEN  and  G.  G.  SYMES,  for  ap- 
pellants. 

The  prior  appropriator  and  owner  of  a  ditch  has  the  ex- 
clusive control  and  right  of  enjoyment  of  the  water  diverted 
therein  ;  and  he  may  change  the  place  of  use  at  pleasure 
without  forfeiting  the  right.  Meter  is  v.  Bicknell,  1  Cal.  261 ; 
He  can  change  the  use  of  same.  Dams  v.  Gale,  '32  Cal.  26. 

Appropriation  and  use  and  nonuse  are  the  tests  of  right, 
and  place  and  character  are  not.  After  appropriation  a 
party  is  entitled  to  use  the  amount  appropriated  at  any 
place  where  he  may  convey  it  for  a  useful  purpose.  Davis 
v.  Gale,  32  Cal.  34  ;  Weaver  v.  Eureka  L.  Co.,  15  id.  273  ; 
Kidd  v.  Laird,  id.  161. 

A  party  cannot  acquire  rights  to  waste  water  as  against 
the  first  user.  He  may  make  use  of  the  water,  but  the  first 
appropriator  can  assume  possession  of  same  at  any  time. 
Doughty  v.  Oreary,  30  Cal.  290. 

Survey  of  ground,  planting  stakes,  giving  notice  and  con- 
tinually working  on  the  ditch  are  possession,  and  when  the 
ditch  is  completed  the  appropriation  relates  back  to  the  date 
of  commencement.  Cotif/er  v.  Weaver,  6  Cal.  548  ;  Kim- 
ball  v,  GearJieart,  12  id.  '27. 
VOL.  I  —  68. 


538  WOOLMAN  0.  GAUKINGER.  [Aug.  T., 

Appellants  put  up  notice  claiming  one  thousand  inches 
of  water  for  mining  purposes  and  recorded  it  with  county 
recorder,  and  worked  on  their  ditch  until  completion. 
Where  did  respondents  acquire  any  right  to  use  any  por- 
tion of  the  one  thousand  inches  ? 

The  court  erred  in  its  instructions,  which  were  to  the  effect 
that  when  water  is  appropriated  for  mining  purposes  and 
used  at  one  place,  it  cannot  be  conveyed  to  another  place 
if  some  person  has  been  using  the  waste  water  from  the 
mining  operations.  The  authorities  already  cited  show  that 
this  was  error. 

The  court  also  erred  in  its  instruction,  requiring  the  prior 
appropriator  to  give  notice  to  the  party  using  waste  water 
that  he  could  not  always  use  it. 

The  proceedings  in  this  case  are  irregular.  The  complaint 
consolidates  actions  at  law  and  in  equity,  and  asks  for  dam- 
ages and  an  injunction.  The  judgment  is  for  damages  and  a 
perpetual  injunction,  and  is  founded  on  the  verdict  of  a  jury. 
Kleinschmidt  v.  Dunphy,  11  Wall.  (U.  S.)  610  ;  Orchard 
v.  Hudges,  I  Wall.  (U.  S.)  76  ;  Benner  v.  Porter,  9  How.  242  : 
Noonan  v.  Lee,  2  Black,  499.  This  suit  was  commenced  on 
the  common-law  side  of  the  court  for  damages,  and  there 
was  no  jurisdiction  to  grant  equitable  relief.  The  action 
was  tried  by  a  jury  and  an  injunction  was  granted  in  effect 
by  the  jury.  The  case  should  be  reversed  for  these  irregu- 
larities. Lyon  v.  Woodman,  3d  Dist.  Utah  ;  Perm  v. 
Holme,  21  How.  (U.  S.)  481. 

SHOBER  &  LOWRY  and  E.  W.  TOOLE,  for  respondents. 

The  case  was  tried  as  requested  by  all  parties.  Instruc- 
tions were  given  by  the  court  at  the  instance  of  appellants  as 
well  as  respondents.  No  objection  was  taken  by  appellants 
to  the  manner  and  form  of  the  action,  or  the  manner  and 
form  of  the  trial.  The  case  was  tried  as  authorized  by  the 
Practice  Act. 

The  only  questions  presented  by  the  record  are  these  : 
Do  the  general  verdict  and  special  findings  sustain  the  judg 
ment  1  Did  the  court  err  in  giving  or  refusing  instructions 


1872.]  WOOLMAN  c.  GAKRINGER.  639 

to  the  jury  \  The  judgment  is  correct.  The  instructions 
cover  every  material  proposition. 

The  extent  of  the  rights  acquired  by  respondent,  to  which 
subsequently  acquired  rights  must  be  subordinate,  was  one 
of  fact  for  the  jury.  Nevada  W.  Co.  v.  Powell,  34  Cal.  109. 

When  a  right  has  vested  in  the  subsequent  appropriator, 
the  prior  appropriator  cannot  extend  his  claim,  or  change 
the  means  of  his  appropriation  to  the  prejudice  of  the 
second  appropriator.  Ang.  on  Water-courses,  237 ;  Butte 
C.  &  2).  Co.  v.  Vaughn,  11  Cal.  153 ;  Kidd  v.  Laird,  15  id. 
1 61 ;  Kinibatt  v.  GearJieart,  12  id.  27 ;  Butte  T.  M.  Co.  v. 
-Morgan,  19  id.  616 ;  Hill  v.  Smith,  27  id.  476  ;  McDonald 
v.  Askew,  29  id.  290 ;  Nevada  W.  Co.  v.  Powell,  34  id.  109. 

Appellants  cannot  raise  the  question  of  the  improper 
blending  of  actions  in  this  court  for  the  first  time.  The  legal 
rights  were  determined  by  the  jury.  The  decree  and  injunc- 
tion emanate  from  the  court.  Toombs  v.  Hornbuckle,  ante. 
p.  286. 

MURPHY,  J.  This  is  an  appeal  from  the  judgment-roll, 
in  an  action  for  damages,  for  the  diversion  of  water,  and  for 
an  injunction,  united  in  the  same  complaint,  tried  to  a  jury, 
and  judgment  for  damages  and  a  perpetual  injunction. 

The  jury  returned  a  general  verdict  for  $250  damages,  in 
favor  of  the  plaintiff,  and,  also,  findings  on  the  special 
issues  submitted. 

Thereupon,  both  parties  filed  motions  —  the  plaintiffs  for 
j  udgment  and  decree,  and  the  defendants  to  set  aside  the 
general  verdict,  and  for  judgment  upon  the  special  findings. 

Both  motions  were  heard  together,  and  the  defendants' 
overruled,  and  the  plaintiffs'  sustained,  and,  accordingly, 
.judgment  based  upon  the  general  verdict  for  $250  damages 
rendered,  and  a  decree,  based  upon  the  pleadings,  general 
verdict  and  special  findings,  for  perpetual  injunction  entered, 
in  favor  of  the  plaintiffs  and  against  the  defendants. 

To  this  action  of  the  court,  as  also  to  the  ruling  out  of 
certain  testimony,  and  the  refusal  and  giving  certain  instruc- 
tion to  the  jury,  defendants,  by  counsel,  excepted  and  ap- 
pealed to  this  court,. 


540  WOOLMAN  V.  GrARRINGER.  [Aug.  TM 

The  first  inquiry  that  naturally  and  properly  arises 
here  is,  as  to  the  regularity  and  legality  of  the  proceed- 
ings in  the  court  below,  and  involves  the  question  of  juris- 
diction. 

The  proposition,  that  law  and  equity  cannot  be  blended 
in  the  same  suit  or  action,  under  our  organic  act,  was  elabo- 
rately discussed  and  definitely  settled  in  the  case  of  Oalla 
gJier  et  al.  v.  Basey  et  al.,  by  this  court,  at  its  January 
term,  1872. 

Upon  the  strength  of  that  decision  and  the  authorities 
upon  which  it  is  based,  and  the  general  principles  of  law 
governing,  we  hold : 

1.  That  the  organic  act,  in  clothing  the  supreme  and  dis- 
trict courts  of  the  Territory  with  both  common-law  and 
chancery  jurisdiction,  confers  them  as  separate  powers  and 
distinct  jurisdictions. 

2.  That  in  judicial  proceedings  in  pursuance  thereof,  the 
well-known  and   recognized  distinctions  between  law  and 
equity  must  be  maintained,  and  the  peculiar  and  character- 
istic features  of  these  different  jurisdictions  preserved,  and 
they  exercised  separately  and  not  together. 

3.  That  it  is  within  the  province  of  the  local  statute  to 
regulate  or  limit  and  control  the  forms  of  proceedings,   in 
actions  at  law  and  suits  in  equity,  but  not  within  the  scope 
of  its  authority  to  destroy  or  blend  together,  in  the  same  pro- 
ceeding, the  two  jurisdictions. 

4.  That  actions  at  law,  where  legal  remedy  is  demanded, 
must  be  tried  as  at  law,  and  the  judgment  based  upon  the 
verdict  of  a  jury,  or  the  findings  of  the  court  sitting  in  the 
capacity  of  a  jury. 

5.  That  suits  in  equity,  where  equitable  relief  is  prayed, 
or  where  an  equitable  defense  is  set  up  to  a  claim  at  law 
must  be  tried  as  in  a  court  of  chancery,  and  the  decree 
emanate  from  the  judge  sitting  as  a  chancellor. 

In  the  case  at  bar  both  legal  and  equitable  relief  is  sought, 
and  both  the  law  and  chancery  powers  of  the  court  are  in- 
voked. 


1872.]  WOOLMAN  v.  GAKRINGEB.  541 

In  the  same,  complaint  both  damages  at  law  and  an  in- 
junction enjoining  in  equity  are  asked. 

While  it  purports  to  be  an  action  brought  on  the  law  side 
of  the  court  for  damages,  yet  it  seeks  relief  by  restraint  on 
the  equity  or  chancery  side  also. 

And  in  this  condition  it  was  tried  to  a  jury  as  at  law,  and 
a  judgment  rendered  upon  the  general  verdict  of  a  jury,  for 
$250  damages  for  the  plaintiffs,  and,  at  the  same  time  and 
in  the  same  connection,  a  decree  entered  perpetually  enjoin- 
ing and  restraining  the  defendants. 

The  court  could  only  consistently  and  lawfully  exercise 
but  one  of  these  separate  functions  or  distinct  jurisdictions 
in  the  same  proceeding,  and  that  only  when  properly  in- 
voked. 

The  proceedings  are  neither  in  conformity  to  the  estab- 
lished principles  and  rules  governing  in  law  or  in  equity, 
but  seem  to  partake  of  the  nature  of  both,  and  are  irregular 
and  illegal  throughout. 

And  for  these  reasons,  if  there  were  no  others,  the  case 
will  have  to  be  reversed. 

And  here  the  matter  might  rest  were  it  not  for  the  fact 
that  another  and  very  important  question  presents  itself, 
which  it  is  considered  advisable  to  notice  in  this  connection. 

It  relates  to  the  effect  on  the  right  of  the  appropriator  of 
water  of  a  change  in  the  place  of  use  of  the  water  appro 
priated. 

From  the  record  it  appears  that  on  the  4th  of  June,  1866, 
the  defendants  and  their  predecessors  in  interest,  by  means 
of  a  dam,  ditch  and  a  posted  notice  at  the  point  of  appro- 
priation, and  about  four  miles  above  the  mouth  of  the  creek, 
did  appropriate  one  thousand  inches  of  the  water  of  Mc- 
Clelland creek,  in  Jefferson  county,  Montana  Territory,  for 
mining  purposes. 

And  it  also  appears,  that  afterward,  in  September  of  the 
same  year,  plaintiffs,  by  means  of  a  dam  and  ditch,  about 
a  mile  below  the  point  of  defendants'  appropriation,  did 
likewise  appropriate  two  hundred  inches  of  the  water  of 
said  creek. 


542  WOOLMAN  v.  GARKINGER.  [Aug.  T. 

And  it  further  appears  that  defendants,  by  means  of  their 
said  ditch,  from  the  30th  day  of  June  to  the  4th  day  of 
July,  1870,  did  divert  the  water  of  the  creek  aforesaid  from 
the  head  of  and  away  from  the  plaintiffs'  ditch. 

And  of  these  facts  there  is  no  controversy,  and  upon  the 
appropriations,  as  above  stated,  the  parties  base  their  respect- 
ive claims. 

The  record  also  shows  that  "there  was  no  proof  intro- 
duced tending  to  show,"  "nor"  that  "it  was  claimed  on 
the  trial  that  either  right  of  either  party  had  been  aban- 
doned." And  further,  that  "it  was  proven  and  conceded 
that  the  defendants'  appropriation  of  the  water  was  prior, 
in  point  of  time,  to  the  plaintiffs',  to  the  extent  of  one  thou- 
sand inches  ;  but  the  plaintiffs  claimed  that,  as  they,  the  de- 
fendants and  grantors,  had  not  carried  the  water  away,  or 
given  notice  of  their  intent  to  carry  it  away  from  the  head 
of  plaintiffs'  ditch,  until  after  plaintiffs'  grantors'  appropri- 
ation, that,  therefore,  they  could  not  thereafter  do  so." 

And  this  is  the  proposition  upon  which  the  plaintiffs  rested 
their  case,  and  which  we  propose  to  briefly  consider  for  the 
purpose,  if  possible,  of  settling  the  law  in  that  regard  so  far 
as  this  Territory  is  concerned. 

The  case  seems  to  have  been  tried  and  determined  upon 
the  theory  that  the  water  was  not  carried  away  from  the 
point  where  the  plaintiffs'  ditch  tapped  the  stream,  or  that 
there  was  no  actual  notice  brought  home  to  plaintiffs  of  such 
intention  to  carry  it  awa}^  before  their  subsequent  appro- 
priation. 

The  facts  are,  water  was  not  carried  away  till  after  the 
dam  and  ditch  of  plaintiffs  were  constructed,  nor  does  it 
appear  that  any  notice,  other  than  that  of  the  general  ap- 
propriation for  mining  purposes,  was  even  given,  except  it 
be  such  as  the  acts  of  the  defendants  themselves  might  have 
indicated  to  the  mind  of  a  reasonable  person.  And  it  is 
not  claimed  that  they  did  not  follow  up  the  construction  of 
their  ditch  with  proper  diligence. 

We  are  constrained  to  believe  that  all  this  was  not  neces- 
sary, arul  that  flip  dpfrndants  liad  the  right,  under  the  cir- 


1872.]  WOOLMAK  o.  GAKKINGER.  543 

aumstances,  to  change  the  place  of  use  and  divert  the  water 
to  any  other  point,  to  the  extent  of  their  appropriation. 

In  the  case  of  Maeris  v.  Bicknell,  7  Cal.  261,  the  court 
said:  "The  next  question  which  arises  in  this  case  is, 
whether  a  party  who  makes  a  prior  appropriation  of  water 
can  change  the  place  of  its  use  without  losing  that  priority, 
as  against  those  whose  rights  have  attached  before  the 
change.  This  question,  we  think,  can  admit  of  but  one 
answer.  It  would  seem  clear  that  the  mere  change  in  the 
use  of  water  from  one  mining  locality  to  another,  by  the 
extension  of  the  ditch,  or  by  the  construction  of  branches 
of  the  same  ditch,  would  by  no  means  affect  the  right  of  the 
party.  It  would  destroy  the  utility  of  such  works  were 
any  other  rule  adopted." 

And  in  the  case  of  Davis  v.  Gale,  32  Cal.  26,  this  rule  is 
not  only  confirmed,  but  the  court  goes  still  further  and  lays 
down  another  equally  wise  and  important  rule,  that  a  prior 
appropriator  may  even  change  the  use  for  which  he  first 
appropriated  the  water  without  losing  his  right  of  priority, 
as  against  a  party  whose  subsequent  appropriation  was 
made  before  the  change  took  place. 

In  the  language  of  the  learned  judge  who  delivered  the 
opinion  of  the  court  in  that  case,  ''a  party  acquires  a  right 
to  a  yinen  quantity  of  water  by  appropriation  and  use.  and 
he  loses  that  right  by  nonuse  or  abandonment.  Appropri- 
ation, use  and  nonuse  are  the  tests  of  his  right,  and  place 
of  use  and  character  of  use  are  not.  When  he  has  made 
his  appropriation  he  becomes  entitled  to  the  use  of  the 
quantity  which  lie  lias  appropriated  at  any  -place  where  he 
may  choose  to  convey  it,  and  for  any  useful  and  beneficial 
purpose  to  which  he  may  choose  to  apply  it.  Any  other 
rule  would  lead  to  endless  complications  and  most  materi 
ally  impair  the  value  of  water  rights  and  privileges. 

"  Thus,  a  party  may  appropriate  water,  in  the  firs;  iii-1ance, 
for  the  purpose  of  placer  mining,  and  when  his  ground  i> 
worked  out.  or  lie  finds  it  will  not  pay.  or  that  ground  fur- 
ther on  is  'idler,  he  may  leave  the  former  and  carry  iiie 
wate?-  t<»  the  latter  without  losing  his  priori!  \ 


544  WOOLMAN  v.  GARRINGER.  [Aug.  T., 

"  Or  he  may  find  paying  quartz,  and  change  the  use  of  his 
water  from  fluming  or  sluicing  into  a  motive  power  for 
crushing  his  quartz,  without  forfeiting  his  prior  right. 

"  And  so  he  may  in  the  first  place  tap  a  stream  for  the  pur- 
pose of  running  a  saw-mill,  and  after  the  timber  is  ex- 
hausted, or  he  finds  that  a  grist  or  any  other  kind  of  a  mill 
will  be  more  profitable,  he  may  change  the  use  from  one 
purpose  to  the  other  and  to  a  different  point,  if  necessary, 
without  surrendering  or  impairing  his  right  of  priority. 

"  These  water  rights  are  frequently  secured  by  and  attended 
with  the  expenditure  of  large  sums  of  money,  and  to  limit 
them  to  the  particular  place  or  the  special  purpose  in  view 
of  which  they  were  first  sought  and  acquired,  by  such  a 
harsh  and  arbitrary  rule  of  law,  would  be  manifestly  unjust 
and  seriously  deleterious  in  its  results,  and  greatly  em- 
barrass and  retard  the  development  of  the  resources  of  the 
country." 

We  agree  with  the  view  expressed  in  the  case  of  The 
Union  Water  Company  v.  Crary,  25  Cal.  509,  that  the  right 
of  the  first  appropriator  may  be  lost  in  whole  or  in  part  by 
adverse  possession,  under  the  statute  of  limitations.  But  in 
this  case  no  adverse  possession  is  contended  for  nor  is  the 
statute  of  limitations  pleaded  or  relied  upon  by  the  plain- 
tiffs. 

And  from  the  record  it  appears  that  the  defendants  pur- 
sued the  work  on  their  ditch,  which  is  some  twenty-seven 
miles  long  and  cost  about  $50,000,  with  such  reasonable  dili- 
gence as  would  undoubtedly  make  the  appropriation  date 
and  relate  back  to  the  commencement  of  the  same,  even 
were  abandonment  claimed  and  insisted  upon. 

The  notices  posted  on  the  stream,  of  the  appropriation 
of  so  much  water  for  general  mining  purposes,  and  the  im- 
mediate entering  upon  the  continued  prosecution  of  the 
construction  of  the  dam  and  ditch,  and  its  extension  or 
branches,  were  sufficient  to  put  the  plaintiffs  on  their  guard 
and  to  apprise  them  of  the  prior  appropriation  of  the  de- 
fendants and  of  their  superior  rights  in  the  premises.  And 
from  these  facts  they  were  bound  to  take  and  were  charged 


1872.]  GrRISWOLD  f>.  BoLEY. 

with  notice  of  the  defendants'  prior  appropriation,  and  if 
they  then  proceeded  it  was  at  their  own  option  and  peril. 

Nor  were  the  defendants  required  to  take  notice  of  any 
subsequent  appropriation  by  the  plaintiffs,  nor  to  give 
notice  that  they  intended  to  reclaim  the  waste  water  from 
their  mining  operations,  and  that  plaintiffs  could  not  always 
use  the  same. 

The  plaintiffs  could  acquire  no  other  than  a  mere  privi- 
lege or  right  to  the  use  of  the  waste  water,  or  at  most,  but 
a  secondary  and  subordinate  right  to  that  of  the  first  appro- 
priators,  and  only  such  as  was  liable  to  be  determined  by 
their  action  at  any  time,  unless  the  water  had  been  turned 
back  into  the  original  channel  after  it  had  been  used  and 
answered  the  purposes  of  the  first  appropriators,  without 
any  intention  of  recapture,  and  thereby  became publice  juris 
and  subject  to  appropriation  by  any  one,  which  does  not 
appear  from  the  record  ;  but  clearly  the  contrary  it  shows, 
and  was  claimed  on  the  trial  and  proof  offered  to  that  effect. 
The  case  is  reversed  and  remanded. 


GRISWOLD,  respondent,  v.  BOLEY  et  al.,  appellants. 

PRACTICE — statement  on  motion  for  new  trial  —  particular  errors.  Under  §eo- 
tion  195  of  the  Civil  Practice  Act,  the  statement  on  the  motion  for  a  new 
trial  must  specify  the  particulars  in  which  the  evidence  is  insufficient,  and 
a  specification  that  "the  evidence  in  this  case  does  not  justify  the  verdict," 
is  too  general  and  uncertain  and  will  not  be  reviewed  by  this  court. 

PRACTICE  ON  APPEAL  —  i>i-enuin]ition — new  trial — notice — specifications.  In 
the  absence  of  any  objection  this  court  will  presume  that  a  notice  of  the 
motion  for  anew  trial  was  given,  although  it  does  not  appear  in  the  record, 
and  that  the  specifications  of  this  notice  are  contained  in  the  motion  for  a 
new  trial. 

PRACTICK  —  statement —  motion  for  new  trial.  The  specifications  of  error  form 
a  part  of  the  statement,  but  they  are  separate  and  distinct  from  the  motion 
for  a  nevr  trial. 

PRACTICE—  consideration  of  exceptions.  This  court  will  not  considtv  excep- 
tions that  were  not  taken  at  the  proper  time  and  duly  served. 

PRACTICK — exct'^tionx —  instructions.  Exceptions  to  the  charge  of  Che  court 
must  be  made  to  a  specified  portion  thereof,  before  the  case  is  finally  *ub- 
mittod  to  the  jury. 

VOL.  I.  —  G9. 


646  GRISWOLD  v.  BOLEY.  [Aug.  T., 

PRACTICE — verdict — conflicting  evidence  —  prejudice.  A  verd.xt  will  not  b« 
disturbed  that  i<  fairly  sustained  by  any  testimony,  although  the  weight  of 
evidence  is  against  it,  unless  it  appears  to  be  the  result  of  passion,  preju- 
dice or  fraud. 

PRACTICE  —  exceptions  to  proof.  Objections  to  the  proof  of  special  damages 
cannot  be  made  in  this  court  for  the  first  time,  if  no  exceptions  were  taken 
to  the  same  at  the  trial  in  the  court  below. 

MARRIED  WOMEN — record  of  separate,  property.  A  married  woman,  who  re- 
cords with  the  register  of  deeds  of  the  county  in  which  she  resides,  a  bill  of 
sale  of  personal  property  and  also  a  list  of  such  property  and  its  increase, 
complies  with  the  statute  exempting  "the  property  of  married  women 
from  execution  in  certain  cases,"  and  thereby  notifies  the  world  that  the 
same  is  her  property. 

MARRIED  WOMEN — property  —  husband  —  creditors.  A  married  woman,  who 
has  duly  recorded  her  property,  can  make  her  husband  her  agent  and  give 
him  the  control  and  possession  of  the  same  without  affecting  her  rights,  or 
rendering  the  property  liable  for  the  debts  of  her  husband. 

EVIDENCE — general  reputation  of  ownership — fraud.  Evidence  of  general 
reputation  in  the  neighborhood,  concerning  the  ownership  of  certain  cattle 
by  a  married  woman,  is  competent  to  rebut  the  allegation  that  she  had  con- 
spired to  deceive  and  defraud  the  creditors  of  her  husband. 

PRACTICE — order  of  proof '.  The  court  can  determine  the  order  in  which  the 
proof  shall  be  introduced. 

MARRIED  WOMEN  —  silence  about  title  —  estoppel.  A  married  woman,  who  has 
duly  recorded  her  property,  is  not  estopped  from  asserting  her  rights  there- 
to, if  she  was  silent  when  her  husband  stated  that  he  had  the  title  to  the 
same. 

REPLEVIN — demand.  No  demand  for  a  return  of  property,  which  has  been 
unlawfully  taken,  is  necessary  before  the  commencement  of  a  suit  there- 
for. 

SHERIFF  —  parties  —  liability.  The  acts  of  the  sheriff  in  taking  property  are 
the  acts  of  the  parties  to  the  suit,  and  the  officer  and  parties  are  liable 
therefor. 

Appeal  from  the  first  District,  Jefferson  County. 

THIS  action  was  tried  in  November,  1870,  in  the  district 
court,  SYMES,  J. ,  by  a  jury  that  found  for  Griswold.  In  Octo- 
ber 1871,  the  court,  MURPHY,  J.,  overruled  the  motion  for  a 
new  trial,  and  Boley  appealed.  The  facts  appear  in  the 
opinion. 

E.  W.  TOOLE  and  J.  J.  WILLIAMS,  for  appellants. 

No  special  damages  are  claimed  in  the  complaint.  Boley, 
as  sheriff,  levied  on  the  property  by  virtue  of  an  execution 
in  favor  of  Hall  and  Miller.  There  is  no  evidence  that  Hall 
or  Mill<>r  participated  in  or  directed  the  levy  or  sale 


1872.]  GuiswoLD  r.  BOLEY.  547 

2  Estee's  PL  208,  §§  74,  79,  and  cases  cited.     This  fact  must 
be  proven.     It  cannot  be  inferred  that  Hall  or  Miller  directed 
the  levy  or  sale  of  any  property,  except  that  of  the  execu 
tion  debtors. 

The  fact  of  a  demand  in  the  case  must  be  proved  on  the 
trial.  There  is  no  evidence  that  any  demand  was  ever  made 
of  Boley,  Hall  or  Miller,  or  that  they  were  joint  trespassers, 
or  refused  to  deliver.  Civ.  Prac.  Act,  §177;  Daumiel  v 
Gorham,  6  Cal.  44;  Killey  v.  Scannell,  12  id.  75  ;  2  Estee's 
PI.  210,  §§  73,  84.  The  answer  denied  every  material  alle- 
gation of  the  complaint. 

Evidence  was  improperly  introduced  upon  the  question 
of  special  damages,  which  were  not  demanded  in  the  com- 
plaint. 

Respondent  must  bring  herself  within  the  provisions  of 
the  statute  exempting  her  property  from  execution.  Act 
1865,  369.  She  must  show  that  the  debt  for  which  the  exe- 
cution issued  was  not  for  necessaries,  etc.  On  this  point 
there  is  no  evidence.  She  must  show  that  the  list  referred 
to  was  on  the  records  of  the  proper  county  when  the  levy 
was  made.  The  court  erred  in  allowing  respondent  to  state 
her  reasons  for  not  filing  her  list  of  property  sooner.  The 
reasons  could  not  excuse  a  strict  compliance  with  the  law. 

The  value  of  the  property,  as  found  by  the  jury,  was  ex- 
cessive, and  not  supported  by  any  evidence. 

At  common  law,  marriage  is  an  absolute  gift  to  the  hus- 
band of  the  goods  of  the  wife  at  the  time  of  marriage.  The 
common  law  recognizing  this  doctrine  has  been  adopted  in 
this  Territory.  The  husband  is  not  a  party  to  this  action. 
This  action  must  stand  or  fall  on  respondent's  title  to  the 
property. 

The  statute  requiring  the  wife's  separate  property  to  be 
on  record  must  be  strictly  construed.  The  property,  up  to 
the  time  of  liling  the  list  required  by  the  statute,  is  absolute 
in  the  husband.  The  property  in  controversy  was  that  of 
the  husband  of  respondent  at  the  time  the  debt  was  con- 
tracted by  him  with  appellants.  A  husband  cannot  give 
his  wife  property  to  defeat  the  collection  of  his  debts  duo 


648  GRISWOLD  -o.  BOLEY.  [Aug.  T., 

at  the  time.  There  is  no  evidence  that  respondent  ever  re- 
ceived the  property  from  her  husband.  How  then  did  the 
property  become  that  of  respondent  ? 

If  the  husband  has  transferred  the  property  to  respond- 
ent, it  is  only  to  the  extent  of  making  it  exempt  from  his 
debts.  This  does  not  give  respondent  possession  or  domin- 
ion over  the  property,  and  she  cannot  maintain  an  action  of 
replevin  therefor.  The  filing  of  the  list  does  not  operate  as 
a  gift  or  sale  to  respondent. 

The  statute  exempts  only  future  debts  of  the  husband, 
and  does  not  include  those  that  exist  at  the  time  of  filing 
the  list.  The  property  of  the  husband  is  subject  to  his 
debts  incurred  before  such  filing.  It  is  a  new  right  given 
without  a  new  remedy.  If  the  new  right  does  not  confer 
possession,  the  wife  cannot  maintain  replevin.  The  only 
remedy  of  the  wife  is  to  prevent  the  sale  of  the  property  by 
injunction. 

Respondent's  husband  was  entitled  to  the  possession  of 
the  property  as  against  a  trespasser,  and  she  brings  an  action 
for  it.  If  the  action  was  by  the  husband,  his  possessory 
right  was  subject  to  the  attachment.  If  respondent  could 
maintain  replevin  against  a  trespasser,  the  sheriff,  Boley, 
was  not  a  trespasser  for  levying  upon  the  possessory  right 
of  respondent's  husband. 

SHOBER  &  LOWRY,  W.  F.  SANDERS  and  CHUMASERO  & 
CHADWICK,  for  respondent. 

The  taking  alleged  in  the  complaint  is  not  denied,  but 
admitted.  Appellants  say  the  taking  was  not  "  wrongful " 
or  "  unlawful."  Lay  v.  Neville,  25  Cal.  549  ;  Fish  v.  Red- 
ington,  31  id.  185.  No  proof  of  Hall  and  Miller  partici- 
pating in  the  sheriff's  taking  was  required. 

The  evidence  of  special  damages  was  not  objected  to  by 
appellants  at  the  trial,  and  no  exception  was  saved  thereto, 
and  judgment  cannot  be  reversed  therefor. 

The  record  shows  that  the  debt  in  the  case,  under  which 
the  seizure  was  made,  was  a  debt  of  a  ditch  company,  and 
not  for  necessaries  to  respondeu. 


1872.J  GRISWOLD  t>.  BOLBT  549 

The  errors  of  law  raised  by  the  statement  relate  to  the 
order  of  proof,  which  was  within  the  discretion  of  the  court. 
Respondent  did  not  attempt  to  prove  ownership  by  general 
reputation.  Such  proof  was  introduced  to  meet  the  allega- 
tions of  the  answer  that  she  had  perpetrated  a  fraud,  or 
been  culpably  silent.  1  Cal.  Dig.  329,  §  89.  Respondent 
had  caused  her  ownership  to  be  known  by  recording  the 
list  of  property  and  complying  witli  the  statute. 

The  specifications  of  error  do  not  point  out  the  particular 
errors  and  must  be  disregarded.  Civ.  Prac.  Act,  §  195. 
No  exceptions  to  the  giving  or  refusing  of  instructions  were 
taken  at  the  trial. 

Appellants  set  up  an  equitable  estoppel  as  a  defense. 
This  cannot  be  pleaded  or  proven  against  a  femme  covert. 
U.  8.  Bank  v.  Lee,  13  Pet.  107;  Morrison  v.  Wilson,  13 
Cal.  494.  If  her  actions  and  words  do  not  constitute  an 
estoppel,  her  silence  is  not  such  estoppel. 

The  failure  to  record  the  lists  does  not  vest  the  wife's 
property  in  her  husband,  but  makes  it  liable  for  his  debts, 
as  at  common  law. 

A  general  exception  will  not  be  reviewed  on  appeal.  Ex- 
ceptions to  the  charge  to  the  jury  must  point  out  the  spe- 
cific portions  excepted  to.  Hicks  v.  Coleman,  25  Cal.  132  ; 
Newell  v.  Doty,  34  N.  Y.  89  ;  3  Estee's  PI.  503. 

Appellants  do  not  show  in  the  statement  wherein  the  evi- 
dence is  insufficient  to  sustain  the  verdict.  Sanchez  v.  Mc- 
Mahon,  35  Cal.  218  ;  3  Estee's  PL  618. 

A  judgment  will  not  be  set  aside  as  against  the  weight  of 
evidence,  except  in  extraordinary  cases.  Kimball  v.  Gear- 
Jieart,  12  Cal.  27;  Treat  v.  Reilly,  35  id.  129. 

When  the  taking  of  property  is  unlawful,  no  demand  ia 
necessary  before  bringing  a  suit.  Paige  v.  C? Neal,  12  Cal. 
483. 

Appellants  cannot  now  object  that  there  is  a  misjoinder 
of  parties.  They  should  have  demurred  in  the  court  below. 
Civ.  Prac.  Act,  §  45. 

WADE,  C.  J.  This  is  an  action  to  recover  possession  of 
seventy  one  head  of  cattle,  alleged  to  be  the  property  of 


550  GRISWOLD  v.  BOLEY.  [Aug.  T.j 

plaintiff,  and  wrongfully  taken  and  detained  by  defendants. 
It  is  an  ordinary  action  of  claim  and  delivery  of  personal 
property,  and  by  the  record  it  appears,  that  on  the  1st  day 
of  July,  1870,  the  defendant  E.  M.  Boley,  as  sheriff  of 
Jefferson  county,  seized  the  property  in  question  as  the 
property  of  Cornelius  Griswold,  by  virtue  of  a  writ  of  at- 
tachment duly  issued  in  a  suit  wherein  L.  C.  Miller  and  S. 
M.  Hall  were  plaintiffs,  and  William  Berkins,  George  Cleve- 
land, Cornelius  Griswold  and  William  Munn  were  defend- 
ants ;  whereupon  Sarah  M.  Griswold,  plaintiff,  wife  of  said 
Cornelius  Griswold,  claimed  the  property  attached  as  her 
sole  and  separate  property,  and  caused  the  same  to  be  re- 
plevied  from  the  sheriff,  and  the  main  question  in  the  trial 
below  was  as  to  the  title  and  the  right  to  the  possession  of 
the  property  in  litigation. 

The  cause  comes  into  the  court  on  appeal  from  an  order 
overruling  a  motion  for  a  new  trial.  Objection  is  made  that 
the  statement  on  motion  for  a  new  trial  does  not  sufficiently, 
and  with  sufficient  certainty,  specify  and  point  out  wherein 
the  evidence  is  insufficient  to  justify  and  support  the  ver 
diet,  or  wherein  the  errors  of  law  complained  of  occur. 

The  requirements  of  section  195  of  the  Code,  wherein 
the  mode  of  proceeding  for  a  new  trial  is  given,  seem  in- 
capable of  being  misunderstood  or  misinterpreted.  It  is 
therein  provided  that  the  party  intending  to  move  for  a  new 
trial  shall  give  notice  to  the  adverse  party,  and  that  the 
notice  shall  designate  generally  the  grounds  upon  which 
the  motion  will  be  made,  and  that  when  the  notice  desig- 
nates as  the  ground  upon  which  the  motion  will  be  made 
the  insufficiency  of  the  evidence  to  justify  the  verdict  or 
3ther  decision,  the  statement  shall  specify  the  particulars  In 
which  such  evidence  is  alleged  to  be  insufficient,  and  when 
the  grounds  of  the  motion  are  errors  of  law  occurring  at  the 
trial,  and  excepted  to  by  the  moving  party,  the  statement 
shall  specify  the  particular  errors  upon  which  the  party 
will  rely.  The  object  of  these  requirements,  and  the  reason 
why  they  are  imposed  upon  the  party  moving  for  a  new 
trial,  is  to  notify  the  adverse  party  and  the  court  of  the 


1872.]  GRISWOLD  -c.  BULKY.  051 

exact  error  complained  of,  so  that  the  evidence  in  the  state- 
ment may  be  confined  to  the  elucidation,  pro  and  con,  of 
the  matter  complained  of. 

This  section  does  not  contemplate  that  all  the  evidence 
produced  upon  the  trial  shall  be  contained  and  reproduced 
in  the  statement,  but  only  so  much  thereof  as  is  applicable 
to  maintain  or  to  defeat  the  questions  raised  on  appeal. 

The  motion  must  designate  and  specify  with  exactness 
and  precision  the  grounds  upon  which  the  motion  will  be 
made,  and  these  specifications  must  be  carried  into  the  state- 
ment and  form  a  part  thereof,  and  only  so  much  of  the  evi- 
dence shall  be  reproduced  as  tends  to  explain  the  specifica- 
tions of  error. 

The  cause  on  appeal  is  to  be  tried  upon  questions  of  law 
and  fact,  raised  in  the  statement,  and  a  statement  that  makes 
a  general  assignment  of  errors  as  to  the  law  and  fact,  calls 
upon  the  appellate  court  to  form  itself  into  a  sort  of  inves- 
tigating committee  to  hunt  after  possible  errors,  in  the  hope 
that  the  court  will  find  what  the  appellant  has  been  unable 
to  do,  and  if  the  court  should  take  any  notice  of  such  gen- 
eral assignment  of  errors,  it  would  necessarily  be  compelled 
to  try  the  case  over  again  upon  the  facts,  like  a  case  in 
equity,  upon  the  pleadings  and  proofs.  This  court  has  no 
jurisdiction  for  any  such  purpose,  and  we  must  confine 
ourselves  to  the  investigation  of  such  alleged  errors  as  are 
specifically  raised  in  the  statement. 

The  specification  of  errors  forms  the  frame  work  of  the 
statement,  and  the  evidence  is  only  produced  to  strengthen 
and  support  the  structure,  and  make  it  complete.  The 
specification  is  not  only  necessary,  in  order  to  direct  the 
attention  of  the  court  to  the  evidence  that  bears  upon 
the  error  complained  of,  but  it  is  equally  necessary  to  enable 
the  adverse  party  to  suggest  intelligently  such  amendments 
as  may  be  important  to  the  just  determination  of  the  case. 

It  is  the  duty  of  the  court  to  settle  the  statement,  so  far  as 
the  evidence  is  concerned,  if  the  parties  fail  to  agree,  but 
neither  the  court  nor  the  adverse  party  can  act  intelligently 
in  the  premises,  until  the  errors  complained  of  are  specifi- 


652  GRISWOLD  v.  BOLEY.  [Aug.  T., 

cally  designated,  for  only  so  much  of  the  evidence  should 
go  into  the  statement  as  tends  to  elucidate  the  point  in  dis- 
pute, whereas,  a  general  assignment  of  errors  would  compel 
a  reproduction  of  all  the  testimony,  and  would  impose  upon 
the  court  the  duty  of  trying  the  case  again  upon  its  merits, 
and  this  the  law  does  not  contemplate. 

We  say,  with  Mr.  Chief  Justice  FIELD,  in  Barrett  v. 
Tewksbury,  15  Cal.  358,  that  the  specifications  must  be 
made  when  the  statements  are  originally  prepared.  Nor  is 
there  any  difficulty  in  pursuing  this  course,  but,  on  the 
contrary,  the  labor  of  the  parties,  as  well  as  their  expenses, 
will  be  thereby  greatly  lessened.  It  is  certainly  a  very 
simple  matter  for  the  party  appealing  to  allege,  either  at 
the  commencement  or  conclusion  of  his  statement,  that,  on 
appeal,  he  will  rely  upon  certain  errors  committed  by  the 
court ;  as  for  example,  in  admitting  the  testimony  of  a  par- 
ticular witness,  or  in  excluding  certain  documents,  or  in 
giving  or  refusing  certain  instructions,  or  in  making  par- 
ticular rulings  upon  the  contract  or  subjects  in  controversy. 
When  the  grounds  are  thus  specified,  it  will  be  an  easy 
matter  to  state  so  much  of  the  evidence,  as  may  be  necessary 
to  explain  and  point  them  out,  and  the  adverse  party  will 
be  enabled  to  suggest,  readily  and  intelligently,  such 
amendments  to  the  statement,  as  he  may  deem  important 
to  their  just  determination. 

There  may  be  cases  where  equitable  relief  is  sought,  in 
which  the  general  ground  of  appeal  will  be,  that  the  decree 
is  not  warranted  by  the  evidence  ;  yet,  even  then,  the  gen- 
eral ground  will  be  found,  in  a  great  majority  of  instances, 
subject  to  more  particular  specifications,  as  that  the  evidence 
does  not  establish  a  contract  or  show  a  tender  or  compliance 
with  particular  conditions  precedent,  or  the  like,  which  will 
constitute  the  matter  urged  upon  the  court. 

In  the  case  at  bar,  there  does  not  seem  to  have  been  any 
notice  of  motion  for  a  new  trial,  but  as  there  was  no  objec- 
tion raised  upon  this  ground,  we  must  conclude  that  the 
notice  was  given,  and  that  the  specifications  of  such  notice 
were  carried  into  the  motion  for  a  new  trial,  which  appears 


1872.]  GRISWOLD  v.  BOLEY.  553 

in  the  record,  and  seems  to  form  the  specifications  of  errors 
in  the  statement.  And,  although  we  believe  the  specifica- 
tions of  error  should  form  a  part  of  the  statement,  separate 
and  distinct  from  the  motion  for  a  new  trial,  we  have  con- 
cluded to  examine  the  grounds  for  a  new  trial,  as  specified 
in  the  motion. 

The  first  specification  of  error  is  as  follows : 

"  The  evidence  in  the  case  does  not  justify  the  findings 
of  the  verdict." 

For  reasons  already  suggested,  the  court  will  not  under- 
take to  ascertain  if  the  evidence  justifies  the  verdict.  This 
would  compel  the  trial  of  the  cause  upon  its  merits.  The 
statement  must  specify  the  particulars  in  which  the  evidence 
is  alleged  to  be  insufficient.  It  must  point  out,  with  exact- 
ness and  precision,  the  weak  point  in  the  testimony  ;  other- 
wise, it  will  receive  no  consideration  from  the  court.  Any 
other  rule  would  compel  the  court  to  go  upon  a  voyage  of 
discovery  through  an  interminable  record,  in  pursuit  of — 
nothing.  We  cannot  enter  upon  a  speculation  so  vague  and 
uncertain.  One  other  specification  is  as  follows: 

''The  court  erred  in  instructing  the  jury  for  the  plaintiff, 
as  they  were  instructed  by  the  court  at  the  time." 

This  specification  is  of  like  character  to  the  one  already 
considered,  and  for  like  reasons  cannot  claim  the  attention 
of  the  court.  And  for  another  reason :  the  instructions 
given  on  behalf  of  the  plaintiff  were  not  excepted  to  at  the 
time,  and,  for  all  that  appears  in  the  record,  the  instruc- 
tions went  to  the  jury  without  objection.  \Ve  can  take  no 
notice  of  exceptions  not  Taken  at  the  proper  time  and  duly 
saved  ;  and,  if  this  exception  had  been  taken  at  the  time  the 
instructions  were  given,  and  this  fact  had  duly  appeared  in 
the  record,  the  exception  is  of  such  a  general  character  that 
it  does  not  meet  the  requirements  of  the  Code,  which  pro- 
vides that  the  statement  shall  specify  the  particular  errors 
upon  which  the  party  will  rely. 

Exceptions  to  the  charge  to  the  juiy  ought  to  point  out 
the  specific  portions  excepted  to  and  to  be  made  at  the  time, 
of  the  trial,  in  order  that  the  judge  may  have  an  opportu- 
VOL.  L—  70 


554  GRISWOLD  v.  BOLEY.  [Aug.  T., 

nity,  before  the  jury  retires,  to  correct  any  error  he  may 
have  fallen  into  in  the  hurry  and  perplexities  of  the  trial. 
Hicks  v.  Ooleman  et  al.,  25  Cal.  146.  And  no  exceptions  to 
instructions  to  the  jury  ought  to  be  regarded,  unless  the 
same  are  made  and  presented  to  the  court  before  the  cause 
is  finally  submitted  to  the  jury. 

We  come  now  to  the  consideration  of  the  questions  in  the 
case  that  are  properly  before  us  for  adjudication  and 
decision. 

The  second  specification  of  error  is  as  follows  : 

"The  evidence  does  not  show  that  the  cattle  were  worth 
over  $2,690  at  the  time  they  were  levied  upon.  The  evi- 
dence does  not  show  that  the  plaintiff  was  damaged  in  any 
sum  over  $10  and  detention  of  the  cattle.  The  evidence 
shows  that  the  cattle  belonged  to  the  husband  of  the  plain- 
tiff, C.  Griswold,  at  the  time  they  were  levied  on  and  sold 
by  defendants,  Hall  and  Miller." 

Upon  the  subject  involved  in  this  specification,  we  say 
this :  If  there  is  evidence  in  the  case  to  fairly  support  the 
verdict  of  the  jury,  this  court  will  not  disturb  such  verdict. 
It  is  the  peculiar  province  of  the  jury  to  weigh  conflicting 
testimony,  and  we  can  only  look  into  the  evidence  so  far  a& 
to  ascertain  that  there  is  testimony  to  sustain  the  verdict. 
If  the  testimony  is  in  conflict,  part  sustaining  the  verdict 
and  part  directly  the  opposite,  this  should  end  the  inquiry 
here.  Even  if  we  were  satisfied  that  the  weight  of  the  evi- 
dence was  decidedly  against  the  verdict,  yet  if  the  verdict 
is  fairly  sustained  by  any  evidence  in  the  case,  it  will  not  be 
disturbed  unless  it  shall  appear  to  be  the  result  of  passion, 
prejudice,  fraud,  accident  or  mistake.  Any  other  rule 
would  substitute  the  court  for  the  jury,  and  would  virtu- 
ally destroy  the  benefits  of  a  jury  trial.  For  a  further 
elucidation  of  this  subject  we  refer  to  the  case  of  Ming  v. 
Truett,  and  the  authorities  therein  cited,  decided  at  the 
August  term,  1871.  of  this  court. 

We  have  examined  the  testimony  as  to  the  value  of  the 
cattle,  and  as  to  the  damages  for  their  taking  and  detention, 
and  we  find  there  is  testimony  to  support  the  verdict  of  thr 


1872.]  GRISWOLD  c.  BOLEY.  555 

jury  in  this  behalf,  and  there  is  nothing  in  the  case  tending 
ro  show  that  the  verdict  was  the  result  of  fraud,  accident  or 
mistake.  And,  although  that  portion  of  the  specification 
relating  to  the  ownership  of  the  cattle  is  too  general  in  its 
character  to  compel  an  examination  of  the  evidence  in  this 
regard,  yet  we  have  looked  into  the  evidence  and  find  there 
is  testimony  in  the  case  tending  directly  to  show  that  the 
cattle  in  question  belonged  to  the  plaintiff,  and  that  they 
did  not  belong  to  her  husband,  and  the  only  remaining 
questions  relate  to  the  instruments  of  evidence  and  to  the 
competency  of  the  testimony  by  which  this  ownership  was 
established. 

However,  before  proceeding  to  examine  this  branch  of  the 
case  we  ought  to  say  that  there  were  no  exceptions  taken  to 
the  proof  of  special  damages,  and  for  all  that  appears  the 
testimony  as  to  special  damages  was  given  to  the  jury  with- 
out objection  ;  and  it  is  too  late  to  make  the  objection  here 
for  the  first  time. 

1.  Was  the  ownership  of  the  plaintiff  established  by  com- 
petent proof? 

2.  Has  the  plaintiff  by  any  act  become  estopped  from 
claiming  title  and  ownership  in  the  cattle  ? 

"3.  The  plaintiff  is  a  married  woman,  the  wife  of  C.  Gris- 
^.s'old,  one  of  the  defendants,  against  whom  the  attachment 
issued,  and  the  title  of  the  plaintiff  depends  upon  her  com- 
pliance with  the  statute  of  this  Territory  authorizing  married 
women  to  hold  property  in  their  own  right. 

Our  statute  provides  as  follows  (Bannack  Stat.  369) :  "That 
the  property  owned  by  any  married  woman,  before  her  mar- 
riage, and  that  which  she  may  acquire  after  her  marriage  by 
descent,  gift,  grant,  devise,  or  otherwise,  and  the  increase 
use  and  profits  thereof,  shall  be  exempt  from  all  debts  and 
liabilities  of  the  husband,  unless  for  necessary  articles  pro- 
cured for  the  use  and  benefit  of  herself  and  her  children 
under  the  age  of  eighteen  years.  Prorided,  7/owcrer,  that 
the  provisions  of  this  act  shall  extend  only  to  such  prop- 
erty as  shall  he  mentioned  in  a  list  of  the  property  of  such 
married  woman,  as  is  on  record  in  the  office  of  the  register 


556  GBISWOLD  v.  BOLEY.  [Ang.  T., 


of  deeds  of   the  county  in  which   such  married  woman 

resides." 

The  testimony  shows  that  before  the  plaintiff  was  married 
she  was  the  owner  of  a  mining  claim  in  Alder  gulch  from 
which  she  realized  some  $4,000  or  $5,000  ;  that  after  her 
marriage  she  took  this  money  east  and  bought  groceries 
and  brought  them  to  this  Territory,  and  sold  them,  and, 
with  the  money  arising  from  such  sales,  she  went  to 
Salt  Lake  and  purchased  ninety-one  head  of  cattle  in  her 
own  name,  receiving  at  the  time  of  such  purchase  a  bill 
of  sale  of  the  cattle,  containing  a  description  and  the 
number  of  the  cattle  purchased,  and  a  receipt  for  the 
money  paid,  which  bill  of  sale  was  properly  stamped  and 
dated  May  11,  1867.  This  bill  was  duly  recorded  in  the 
register  s  office,  for  Jefferson  county,  on  the  16th  day  of 
August,  1869,  and  before  the  debt  of  defendants  was  con- 
tracted. 

On  the  llth  day  of  May,  1870,  a  second  list  of  the  same 
property  and  the  increase  thereof  was  duly  recorded  with 
said  register,  and  this  record  was  made  before  the  suit  in 
attachment  was  commenced. 

The  object  in  requiring  this  list  of  the  wife's  property  to  be 
recorded,  is  to  give  notice  to  the  world,  that  she  is  the  owner 
so  that  her  husband  cannot  obtain  credit  upon  the  strength 
of  her  property.  After  this  record  is  made,  it  is  notice  to 
every  one,  and  although  the  property  remains  in  the  posses- 
sion and  control  of  the  husband,  the  person  trusting  or  giving 
credit  to  the  husband  upon  the  strength  of  such  property  does 
so  at  his  peril.  The  statute  was  designed  for  the  protection 
of  married  women,  and  courts  will  carry  this  object  into  exe- 
cution when  the  proper  case  is  made.  That  the  money  paid 
for  these  cattle  originally  belonged  to  the  plaintiff  in  her 
own  right  is  not  disputed  ;  that  she  became  the  owner  of  the 
cattle  by  virtue  of  her  purchase,  is  also  admitted.  And  we 
think  that  procuring  the  original  bill  of  sale,  wherein  a  de- 
scription of  the  property  is  given,  to  be  recorded,  and  also 
procuring  a  subsequent  list  showing  the  increase,  to  be  like- 
wise recorded,  is  a  sufficient  compliance  with  the  statute. 


1872.]  GRISWOLD  v.  BOLET.  657 

Indeed,  we  fail  to  see  why  it  is  not  a  strict  compliance  with 
the  language  of  the  act. 

With  these  lists  of  the  property  duly  recorded  with  the 
register  of  deeds  of  the  proper  county,  if  any  one  was 
deceived  as  to  who  owned  the  property,  such  deception 
must  have  been  the  consequence  of  his  own  negligence  and 
carelessness.  The  record  is  the  best  evidence,  and  is  pro- 
vided alike  for  the  protection  of  the  married  woman  and 
the  creditor  of  the  husband,  and  he  who  fails  to  avail  him- 
self of  the  notice  that  the  law  compels  to  be  given  for  his 
protection,  suffers  from  his  own  act,  and  is  without  remedy. 

The  debt  upon  which  the  attachment  was  issued  was 
contracted  by  Berkins,  Cleveland,  Griswold  and  Munn,  who 
comprised  a  ditch  company,  and  it  was  a  debt  against  this 
company,  and  it  sufficiently  appears  by  the  record,  that  it 
was  not  a  debt  of  Cornelius  Griswold,  contracted  for  neces- 
sary articles  procured  for  the  use  and  benefit  of  his  wife 
and  children.  Under  the  statute,  a  debt  of  the  husband, 
contracted  for  the  necessary  support  of  his  wife  and  chil- 
dren, could  be  collected  from  the  separate  property  of  the 
wife,  but  it  is  perfectly  apparent,  from  the  testimony,  that 
the  debt  under  consideration  is  not  one  of  this  privileged 
character. 

Objection  is  made  that  the  court  permitted  the  plaintiff  to 
show,  by  general  reputation,  that  she  was  the  owner  of  the 
cattle. 

If  it  were  true  that  testimony  of  this  character  was  intro- 
duced and  received  in  evidence,  for  the  purpose  of  showing 
title  in  the  plaintiff,  the  objection  would  have  been  well 
taken,  but  an  examination  of  the  issues  in  the  case  will  show 
that  this  testimony  was  offered  for  another  and  a  very  dif- 
ferent purpose,  and,  if  we  understand  the  issues  correctly, 
was  competent  proof. 

The  answer  charges  that  the  property  in  question  belonged 
to  Cornelius  Griswold,  the  husband  of  plaintiff,  and  that 
the  plaintiff  and  her  husband  conspired  together,  for  the 
purpose  of  hindering,  delaying  and  defrauding  his  credit- 
ors, and  that  the  claim  of  plaintiff  was  fraudulent  and  void. 


558  GraiswoLD «.  BOLEY.  [Aug.  T., 

Under  this  allegation,  proof  was  offered  by  defendants 
lending  to  show  that  plaintiff  had  allowed  her  husband  to 
control  the  property  and  to  call  it  his,  and  to  exercise  acts 
of  ownership  over  it,  with  her  consent,  and  that  by  such 
acts  of  the  plaintiff,  the  defendants  supposed,  and  had  the 
right  to  suppose,  that  the  husband  was  the  owner.  And 
for  the  purpose  of  rebutting  this  allegation  and  proof,  as  to 
fraud  and  conspiracy  by  plaintiff  and  her  husband,  it  was 
competent  and  legitimate  proof  on  her  part  to  show,  that 
it  was  generalty  known  in  the  neighborhood  that  the  prop- 
erty belonged  to  plaintiff.  This  proof  was  not  offered  to 
show  title.  That  the  property  was  originally  purchased 
with  plaintiff's  own  separate  money,  and  that  she  became 
the  lawful  owner  thereof,  by  virtue  of  such  purchase,  was 
not  disputed,  so  that  there  was  no  occasion  to  undertake  to 
show  title  by  reputation,  which  never  could  be  done,  but 
this  proof  was  offered  to  rebut  the  allegation  of  fraud  and 
deception  on  the  part  of  the  plaintiff,  and  to  show  that 
defendants  had  not  been  fraudulently  deceived  as  to  the 
ownership  of  the  property,  and  for  this  purpose  the  testi- 
mony was  legitimate  and  competent. 

And  the  time  when  this  proof  should  have  been  offered 
and  received  in  evidence  was  purely  within  the  discretion 
of  the  court,  The  court  can  direct  the  order  of  proof.  To 
meet  the  allegation  of  fraud  in  the  answer,  it  was  compe- 
tent for  the  plaintiff  in  laying  her  case  before  the  jury  to 
answer  this  charge,  or  she  could  have  produced  this  proof 
in  rebuttal,  after  the  defense  had  rested  their  case.  Either 
would  have  been  in  order  under  the  direction  of  the  court. 

2.  It  is  claimed  in  the  answer,  and  proof  was  offered 
tending  to  show  that  the  plaintiff  stood  by  and  permitted 
her  husband  to  represent  and  claim  the  property  as  his  own, 
and  that  in  consequence  of  such  claim  and  representations 
the  defendants  were  induced  to  give  the  credit  to  said  Cor- 
nelius Griswold.  upon  which  said  indebtedness  is  founded, 
and  that  by  reason  thereof  the  plaintiff  is  estopped  from 
asserting  any  claim  to  the  property. 

At  common   law   the  personal   property   of   a   married 


1872.]  GrIlISWOLD  V.  BOLEY.  559 

vvoman  becomes  her  husband's  by  his  act  of  reducing  the 
same  to  possession,  and  it  was  subject  to  be  taken  to  satisfy 
his  debts.  This  rigorous  and  unjust  rule,  by  the  enlightened 
legislation  of  most  of  our  States  and  Territories,  has  been  so 
far  encroached  upon  and  abrogated  as  to  authorize  and  per- 
mit married  women  to  hold  and  enjoy  their  separate  prop- 
erty, freed  from  liability  for  the  husband's  debts.  Our 
statute  thus  enlarges  the  rights  of  married  women,  and  pro- 
vides that  their  property  shall  not  be  subject  to  the  debts 
of  the  husband,  and  it  points  out  the  mode  by  which  such 
property  shall  be  held  and  preserved.  Baimack  Stats.  369. 
When  a  list  of  the  separate  property  of  the  wife  is  recorded, 
as  required  by  the  statute,  it  is  entirely  freed  from  the 
debts  of  the  husband,  as  fully  and  as  completely  as 
if  the  marriage  relation  did  not  exist.  When  the  statute 
is  complied  with  its  prohibition  is  absolute.  And  as  to 
this  separate  property  of  the  wife,  it  is  competent  for  her 
to  make  her  husband  her  agent  to  take  care  of  and  sell 
and  dispose  of  the  same,  and  after  the  list  of  property  has 
been  recorded  as  required,  the  possession  of  the  husband 
confers  no  rights  upon  him  or  his  creditors.  The  record  is 
notice,  and  the  possession  of  the  husband  raises  no  pre- 
sumptions against  the  wife.  The  very  object  in  requiring 
a  record  is  to  authorize  the  husband  to  retain  possession 
and  at  the  same  time  provide  the  means  whereby  the  public 
shall  not  be  deceived  as  to  the  ownership  of  the  property. 

After  a  list  of  the  property  has  been  recorded  as  required 
Dy  the  statute,  the  wife  cannot  be  estopped  from  asserting 
her  claim  to  the  same  by  her  silence,  and  her  silence  is  what 
is  complained  of,  no  affirmative  act  being  charged  against 
her.  If  the  husband  should  represent  and  claim  the  prop- 
erty as  his  own,  with  the  knowledge  of  his  wife,  this  would 
not  be  an  estoppel,  for  the  reason  that  she  has  placed  upon 
record  her  title,  which  is  notice  to  all  the  world,  and  that 
record  can  no  more  be  contradicted  by  mere  verbal  declara- 
tions of  third  persons  than  can  a  deed.  The  wife  is  not 
obliired  to  publish  the  fraudulent  conduct  or  the  false  as- 
sumptions of  licr  lmsb:iud 


660  GrKISWOLD   V.   BOLEY.  1872.  ] 

It  is  not  claimed  that  the  wife  ever  made  any  representa- 
tions or  performed  any  act  tending  to  show  that  the  prop- 
erty belonged  to  her  husband,  but  it  is  claimed  that  by  her 
silence  she  has  permitted  the  husband  to  claim  the  prop- 
erty, and  that  by  her  silence  she  has  permitted  the  creditors 
to  be  deceived,  and  that  by  her  silence  she  is  estopped.  It 
is  a  sufficient  answer  to  this  claim  to  say  that  when  the  wife 
caused  a  list  of  her  property  to  be  recorded  with  the  regis- 
ter of  deeds,  she  was  not  silent  but  spoke,  not  only  to  the 
creditors  of  her  husband,  but  to  every  one  beside,  and 
thereby  informed  them  if  they  gave  credit  to  her  husband, 
on  the  strength  of  her  property,  they  did  so  at  their  peril. 
If  lands  were  conveyed  to  the  wife  by  a  warrantee  deed  in 
fee  simple  which  was  duly  recorded,  would  the  assertion 
or  representation  of  the  husband,  in  her  presence,  that  the 
land  belonged  to  him,  and  was  his  own  property,  estop  the 
wife  from  claiming  under  the  deed?  So  if  the  wife  has 
record  title  to  personal  property  and  her  husband  should 
claim  the  same  as  his  own,  in  her  presence,  would  she  be 
thereby  estopped  from  asserting  her  claim  by  the  record  ? 

In  the  case  of  The  Bank  of  the  United  States  v.  Eliza 
beth  Lee  et  al.,  the  court  say:  "We  are  asked  to  deal  with 
the  conduct  of  the  wife  living  in  harmony  with  her  husband 
as  if  she  was  a  third  person,  and  to  decree  against  her 
because  she  did  not  expose  her  husband  to  the  community 
in  which  she  lived,  and  especially  to  the  complainants,  when, 
within  the  wife' s  knowledge,  he  was  holding  out  her  prop- 
erty as  his  own,  and  using  of  it  as  his  own,  and  obtaining 
credit  upon  the  faith  that  he  was  the  true  owner.  That 
Richard  B.  Lee  did  deal  with  and  use  the  property  in  con- 
troversy as  if  he  had  been  its  owner,  and  that  the  commu- 
nity did  believe  him  the  true  owner  and  give  him  credit  on 
the  faith  of  the  property,  is  no  doubt  true,  and  it  is  very 
probable  that  Mrs.  Lee  knew  the  fact,  but  continued  passive 
and  silent  on  the  subject.  Was  it  the  duty  of  Mrs.  Lee  to 
advertise  to  the  community  in  which  she  lived,  that  her 
husband  had  no  title  to  the  property  on  the  faith  of  which 
he  was  obtaining  credit,  but  that  it  was  hers  ?  All  we  need 


[Aug.  T.,  ATCHISON  v.  PETERSON.  661 

say  is  that  a  court  of  chancery  cannot  hold  Mrs.  Lee  respon 
sible  for  her  silence."    13  Pet.  107;  Morrison  v.  Wilson 
and  wife,  13  Cal.  494. 

The  doctrine  of  these  cases  applies  with  much  stronger 
force  where,  in  pursuance  of  the-statute,  the  wife  had  in  the 
most  solemn  manner  given  notice  to  the  public  that  she  was 
the  owner  of  the  property,  and  that,  too,  before  the  husband 
had  obtained  any  credit  upon  the  strength  of  her  property, 
and  before  the  debt  of  the  husband  was  contracted.  And 
here  will  be  seen  the  competency  of  the  testimony  tending 
to  show  that  the  public  generally  knew  that  the  property 
belonged  to  the  plaintiff. 

The  answer  does  not  charge  that  the  plaintiff  had  done 
any  affirmative  act  designedly  to  induce  the  defendants  to 
give  credit  to  her  husband,  and  the  testimony  does  not  go 
beyond  the  answer  in  this  respect,  but  it  simply  charges, 
that  she  had  permitted  her  husband  to  claim  the  property 
as  his  own,  and  this,  after  a  public  record  of  the  property 
had  been  made  according  to  law,  is  no  estoppel. 

3.  At  the  time  the  property  was  taken  by  the  attachment 
of  defendants,  it  belonged  to  the  plaintiff,  and  the  taking 
was  unlawful,  and  no  demand  for  a  return  of  the  property 
was  necessary  before  replevin.  The  property  was  taken  by 
the  sheriff  at  the  suit  of  defendants.  His  taking  is  their 
taking.  He  acts  for  them  as  their  agent,  and  his  acts  are 
their  acts,  and  both  are  liable. 

Judgment  affirmed. 


ATCHISON  etal., appellants,?).  PETERSON  et  al.,  respondenta 

ABANDONMENT —  intention.  The  suspension  of  work  upon  a  ditch,  from  July 
1865,  to  August,  1866,  was  not  an  abandonment,  if  there  was  no  intention  tc 
abandon  the  same. 

WATER  —  prior  appropriator —  quantity  and  quality.  The  first  appropriator  of 
water  for  mining  purposes  is  entitled  to  the  same,  as  against  subsequent 
appropriaton,  without  material  interruption  in  the  flow  thereof  in  quan- 
tity or  quality. 

Vol.  I.— 71. 


562  ATCIIISON  c.  PETERSON.  ^Aug.  T., 


INJUNCTION  —  granting  of  —facts  of  case  —  refusal.  It  appeared  in  this  case  that 
the  head  of  a  ditch  was  fifteen  miles  below  certain  mining  ground  ;  that  the 
owners  of  the  ditch,  who  were  the  flrst  appropriators  of  the  water,  were 
compelled,  on  account  of  the  working  of  the  ground,  to  construct  and 
maintain  a  sand  reservoir,  and  use  the  water  ten  minutes  daily  to  clean  it, 
and  employ,  during  this  time,  one  man,  who  was  also  employed  on  the  ditch 
for  other  purposes.  The  court  held  that  the  injuries  complained  of  did  not 
justify  the  granting  of  an  injunction. 

INJUNCTION  —  solvency  of  parties  —  damages.  An  injunction  will  not  be  granted 
if  the  parties  are  solvent  and  the  complainants  have  an  adequate  remedy 
at  law  by  bringing  a  suit  for  damages. 

INJUNCTION  —  remedy  —  injury.  Courts  require  a  very  strong  case  for  the 
granting  of  an  injunction  which  will  cause  more  injury  than  it  will  remedy. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THIS  case  was  tried  by  the  court,  WADE,  J.,  in  Novem- 
ber, 1871,  who  rendered  a  judgment  for  Peterson,  and 
Atchison  appealed.  The  facts  appear  in  the  opinion. 

CHUMASEKO  &  CHADWICK,  for  appellants. 

Appellants  were  injured  by  the  tilling  in  of  the  ditch 
with  sand  and  sediment,  which  required  the  services  of  one 
man  extra  to  keep  the  sand  out,  and  diminished  the 
capacity  of  the  ditch,  and  caused  more  labor  to  clean  out 
the  ditch  in  the  spring.  The  court  below  ignored  the  evi- 
dence upon  these  points.  Appellants  were  compelled,  in 
the  summer  of  1871,  to  reduce  the  price  of  water  ten  cents 
per  inch,  owing  to  the  same  being  rendered  muddy  by  the 
mining  of  respondents.  This  reduction  amounts  to  from 
$40  to  $45  daily,  the  capacity  of  the  ditch  being  from  four 
hundred  to  four  hundred  and  fifty  inches.  Yet  the  court 
finds  that  appellants  are  not  injured  by  the  deterioration 
of  the  water. 

The  court  also  ignored  the  evidence  of  appellants  regard- 
ing the  cleaning  out  of  the  ditch  in  the  spring,  and  finds 
that  appellants  are  not  materially  injured.  The  testimony 
shows  that  the  work  of  cleaning  out  the  ditch  in  the  spring 
would  be  little  or  nothing,  if  it  were  not  for  respondents' 
mining.  In  1871  appellants  were  compelled  to  expend  $5uu 
extra  to  what  would  have  been  necessary  if  respondents 
had  not  filled  up  the  ditch.  If  such  evidence  does  not  show 
an  injury,  we  do  not  comprehend  the  term. 


1872.]  ATOHISON  v.  PETERSON.  563 

The  ditch  had  only  one-half  of  its  original  capacity  on 
account  of  sand,  and  appellants  were  damaged  by  the 
diminished  quantity  of  water  sold  in  1870.  The  evidence 
showed  that  an  extra  man  was  required  on  account  of  the 
sand.  His  wages  were  $125  per  month,  or  about  $1,000  for 
the  mining  season.  And  yet  the  court  finds  that  appellants 
are  not  materially  injured. 

If  appellants  were  entitled  to  the  use  of  the  water  as  pure 
as  they  appropriated  it,  they  are  entitled  to  the  protection 
which  can  only  come  from  a  court  of  equity.  Sear  JR.  Co. 
v.  York  M.  Co.,  8  Cal.  333 ;  Butte  C.  &  D.  Co.  v.  Vaughn, 
11  id.  153 ;  Phcenix  W.  Co.  v.  Fletcher,  23  id.  484 ;  Hill  v. 
Smith,  27  id.  480  ;  S.  C.,  32  id.  166. 

Appellants  do  not  claim  that  respondents  should  be 
enjoined  from  working  their  mining  ground.  They  only 
ask  that  respondents  be  enjoined  from  running  their  tail- 
ings down  into  appellants'  ditch.  This  can  be  done  by  the 
erection  of  slum  dams  on  Ten  Mile  creek.  The  judgment 
should  be  modified  to  allow  this  to  be  done.  Appellants 
have  expended  $117,000  in  valuable  works,  and  should  be 
protected  from  the  acts  of  those  who  come  after  them  and 
seek  to  destroy  their  property. 

If  respondents  are  responsible,  this  is  no  reason  why  they 
should  not  be  enjoined.  Courts  of  equity  always  interfere 
to  prevent  a  multiplicity  of  suits.  In  this  case  appellants 
would  be  compelled  to  bring  many  suits  against  respond- 
ents to  recover  their  damages  year  after  year. 

SIIOBER  &  LOWKY  and  Gf.  G.  SY.MP:S,  for  respondents. 

The  only  way  by  which  the  decision  of  a  court  on  the 
facts  can  be  reviewed  is  by  demanding  written  findings. 
Sanchez  v.  McMa7wn.  35  Cal.  225.  No  written  findings 
were  demanded  by  appellants,  as  required  by  law.  Civ. 
Prac.  Act,  §  180.  There  were  no  written  findings,  and  no 
instructions  offered  or  given,  or  refused,  and  no  exceptions 
were  taken. 

The  statement  does  not  contain  a  specification  of  the  par- 
ticular errors   relied  on.  and  should  be  disregarded.     Civ 


564  ATCHISON  «.  PETERSON.  [Aug.  T., 

Prac.  Act,  §  195  ;  3  Estee's  PL  575  ;  Button  v.  Meed,  28  Cal. 
478 ;  Beans  v.  Emanuelli,  36  id.  118. 

If  the  record  showed  proper  assignments  of  error,  there 
is  a  conflict  of  evidence,  and  the  findings  of  the  court  on 
the  facts  could  not  be  set  aside.  Frost  v.  Hartford,  40  Cal. 
165.  The  testimony  preponderates  in  favor  of  respondents. 

The  party  mining  above  on  a  stream  has  the  right  to  use 
the  water  and  turn  it  back  into  the  channel.  If  parties 
below  are  slightly  injured,  it  is  damnum  absque  injuria. 
Bear  R.  &  A.  W.  Co.  v.  York  M.  Go.,  8  Cal.  332  ;  Hill  v. 
King,  id.  337  ;  Hill  v.  Smith,  27  id.  479  ;  Phanix  W.  Co. 
v.  Fletcher,  23  id.  483. 

The  question  of  a  considerable  injury  to  the  water  and 
ditch  is  a  question  of  fact,  on  which  there  is  a  conflict  of 
evidence.  The  findings  of  the  court  on  facts  will  not  be  set 
aside  unless  the  evidence  was  such  that  a  verdict  would  be 
set  aside  as  contrary  to  evidence.  Moore  v.  Murdoch,  26 
Cal.  515. 

The  opinion  of  the  court  below  is  not  a  finding.  3  Estee's 
PI.  432,  and  cases  cited. 

Appellants  must  make  out  a  case  showing  a  clear  neces- 
sity for  the  issuance  of  an  injunction.  Hill,  on  Inj.,  §§  16, 
18.  The  granting  of  an  injunction  in  this  case  would  cause 
great  injustice  and  injury  to  respondents.  Injunctions  are 
sometimes  refused  on  this  ground.  Hill,  on  Inj.,  §  22. 

The  remedy  of  injunction  is  only  granted  in  the  absence 
of  an  adequate  legal  remedy.  Hill,  on  Inj.,  §25.  Respond- 
ents are  solvent,  as  shown  by  the  evidence,  and  able  to  re- 
spond in  damages. 

WADE,  C.  J.  This  is  a  suit  brought  by  the  owners  of  the 
Helena  Water  Ditch  Company  against  the  defendants,  for 
an  injunction  to  restrain  their  mining  operations  on  the  upper 
Ten  Mile  creek.  The  plaintiffs'  ditch  taps  the  creek  about 
fifteen  miles  below  the  mines  of  defendants,  on  the  same 
stream,  and  the  plaintiffs  claim  to  be  the  prior  appropriators 
of  the  waters  of  the  creek  or  so  much  thereof  as  is  necessary 
for  the  purposes  of  the  ditch,  and  that  the  mining  operations 


1872.]  ATCHISON  #.  PETEBSON.  566 

of  the  defendants  injure  and  damage  the  waters  of  the 
•stream,  and  the  ditch  of  the  plaintiffs. 

The  testimony  of  the  plaintiff's  establishes  the  fact  that 
the  plaintiffs  commenced  their  ditch  in  November,  1864, 
and  continued  work  thereon  until  July,  1865,  expending 
within  that  time  about  $23,000  thereon,  and  completing  two- 
thirds  of  the  digging  required  to  complete  the  ditch,  when 
their  money  failed,  and  the  work  suspended.  No  more  work 
was  performed  on  the  ditch  until  August,  1866,  but  the  com- 
pany continued  in  possession  and  claiming  the  ditch  until 
August,  1866,  when  they  sold  the  same  for  $4,000,  and  work 
thereon  was  resumed,  and  the  ditch  completed  and  put  in 
operation  in  1867.  There  was  no  abandonment  of  the  ditch 
within  the  meaning  of  the  law,  for  when  the  work  was  sus- 
pended there  was  no  intention  to  abandon,  and  the  subse- 
quent sale  for  a  valuable  consideration  showed  the  property 
to  be  valuable,  and  there  was,  in  fact,  no  abandonment  of 
possession. 

The  testimony  further  shows,  that  in  1865  there  was  mining 
on  the  upper  Ten  Mile  for  two  or  three  months  on  a  small 
scale,  but  there  was  no  continuous  mining  there  until  1867, 
and  since  that  time  the  proof  is  not  satisfactory  as  to  the 
continuance  or  extent  of  the  mining  there.  The  plaintiffs 
are  clearly  the  prior  appropriators  of  the  waters  of  the  Ten 
Mile  creek  to  the  capacity  of  their  ditch,  as  against  the  de- 
fendants, and  as  such  are  entitled  to  the  unobstructed  use 
and  flow  of  the  water. 

2.  The  facts  herein  shown  are  sufficient  to  demonstrate 
that  the  right  to  bring  this  action  is  not  barred  by  the  statute 
of  limitations. 

3.  The  only  remaining  question,  and  upon  the  decision  of 
which  the  fate  of  this  case  depends,  relates  to  the  injury  and 
damage  to  the  plaintiffs,  and  their  ditch,  and  the  waters 
thereof  in  consequence  of  the  mining  operations  of  the  de- 
fendants.    The  volume  of  the  waters  of  the  stream  is  in- 
creased by  tributaries  flowing  into  it  between  the  head  of, 
plaintiffs'  ditch,  and  the  mines  of  defendants  from  fifteen 
to  eighteen  miles  above,  about  five-sixths,  that  is  to  say,  the 


566  ATCHISON  v.  PETERSON.  [Aug.  T., 

stream  where  plaintiffs'  ditch  taps  it  is  about  six  times  as 
large  as  at  the  point  where  the  mining  operations  of  defend- 
ants are  carried  on.  If  twelve  hundred  inches  of  water  flow 
down  the  stream  opposite  the  head  of  plaintiffs'  ditch,  two 
hundred  inches  thereof,  or  in  that  proportion,  would  come 
from  the  upper  Ten  Mile  at  the  point  where  the  defendants 
are  mining.  The  tailings  of  the  defendants  are  cribbed,  and 
this  two  hundred  inches  of  water,  after  having  been  used 
for  mining  several  times,  flows  down  the  stream  for  fifteen 
or  eighteen  miles  to  the  head  of  plaintiffs'  ditch,  but  before 
reaching  that  point  is  mixed  with  ten  hundred  inches  of 
pure  water,  and  in  this  condition  it  enters  the  ditch  of  plain- 
tiffs. It  then  flows  through  the  ditch  for  thirteen  miles 
and  is  used  for  mining  purposes  in  Last  Chance  gulch. 

It  is  admitted  that  the  mining  of  defendants  does  not 
diminish  the  flow  of  the  waters  of  the  creek,  and  the  testi- 
mony is  entirely  conclusive  upon  the  proposition  that  the 
water  after  reaching  the  mines  of  Last  Chance,  where  it  is 
used,  is  first-class  water  for  mining  purposes,  and  that  it  is 
not  diminished  in  quantity  or  quality  at  that  point.  Then  the 
only  remaining  question  relates  to  the  injury  and  damage 
to  the  ditch  caused  by  the  flow  of  this  water  through  it. 

There  is  abundance  of  testimony  tending  to  show  that  the 
water  will  become  clear  after  having  been  used  for  mining, 
in  flowing  five  or  six  miles,  while,  upon  the  other  hand, 
there  is  proof  going  to  show  that  roily  water  will  never  be- 
come pure  as  long  as  it  is  in  motion  ;  and  this  latter  view  is 
the  most  satisfactory,  and  I  have  not  much  hesitation  in 
saying,  judging  from  the  testimony,  that  the  waters  of  Ten 
Mile  creek,  at  the  point  where  the  plaintiffs'  ditch  taps 
the  same,  are  discolored,  and  carry  a  certain  amount  of 
sediment  in  consequence  of  the  mining  of  defendants.  Be- 
ore  this  mining  commenced  the  waters  of  the  creek  were  pure. 

Now  let  us  examine  the  extent  of  the  injury  to  the  ditch. 
The  water  is  not  injured,  as  we  have  already  shown.  Then 
the  only  injury  that  could  result  is  in  filling  the  ditch  and 
in  constructing  and  tending  the  necessary  apparatus  to 
keep  the  sand  and  sediment  from  entering  the  same. 


1872.]  ATCHISON  v.  PETERSON.  567 

The  ditch  liad  to  be  cleaned  each  spring,  and  did  before 
the  raining  of  defendants  commenced,  and  it  is  not  very 
satisfactorily  shown  that  the  cleaning  required  any  consider- 
able more  labor  since  the  mining  than  before.  Certainly  the 
flow  of  the  water  has  not  been  materially  obstructed  since 
the  mining  commenced.  But  the  proof  shows  this  fact, 
that  the  plaintiffs  have  been  compelled  to  construct  a  sand 
gate  or  reservoir,  to  catch  the  sand  and  sediment,  and  that 
this,  during  the  mining  season,  fills  every  twenty-four  hours, 
and  that  the  waters  of  the  ditch  had  to  be  used  from  ten  to 
twenty  minutes  each  day  in  cleaning  this  gate  or  reservoir, 
and  that  one  man's  services  are  necessary  for  that  time  to 
clear  the  sand  and  sediment  from  the  reservoir.  The  testi- 
mony shows  that  this  ditch  is  divided  into  three  sections, 
and  that  the  services  of  one  man  to  each  section  is  con- 
stantly employed,  and  was  before  there  was  any  mining  on 
the  creek,  to  keep  the  ditch  in  running  order.  Mr.  Atchi- 
son  thinks  that  two  men  might  probably  attend  to  the  ditch 
if  it  was  not  necessary  to  tend  the  sand  gate.  Then  the 
extent  of  the  injury  and  damage  is  reduced  to  this  :  the 
construction  of  a  sand  gate,  the  use  of  the  water  ten 
minutes  each  day  to  wash  and  cleanse  it,  and  the  services 
of  a  man  for  that  length  of  time  who  is  necessarily  employed 
in  other  services  on  the  ditch,  and  is  not,  especially  there 
for  the  purpose  of  tending  the  sand  gate,  but  is  on  the  ditch 
for  general  services,  working  by  the  month. 

Does  the  case  come  within  the  range  of  the  decisions  cited 
by  appellants  in  the  California  Reports  ?  We  will  examine 
those  cases.  In  the  case  of  Hill  v.  SmitJi,  27  Cal.  480,  the 
defendants  had  been  engaged  for  four  weeks  in  digging  up 
the  bed  of  a  creek  at  points  from  six  hundred  feet  to  one 
thousand  feet  above  the  head  of  the  ditch,  and  washing 
down  the  earth  and  water  into  the  ditch,  thereby  mixin«; 

*  O 

the  earth  and  mud  with  the  water,  and  that  in  consequence 
thereof  the  sales  of  water  were  injured,  and  the  use  of  the 
mines  destroyed  ;  where  the  plaintiff  had  previously  sold 
sixty  inches  of  water  she  was  compelled  to  sell  one  hundred 


568  ATOHISON  v.  PETERSON. 

and  twenty  inches  at  the  same  price,  in  consequence  of  the 
deterioration  of  its  solvent  capacity,  by  reason  of  the  sedi- 
ment and  mud  from  defendants'  mining  claim,  and  that 
some  of  the  miners  quit  work  entirely  in  consequence  of  the 
muddy  water.  Is  this  case  parallel  in  any  sense  to  the 
case  at  bar  ?  Here  the  mining  was  only  six  hundred  feet  to 
one  thousand  feet  from  the  head  of  the  ditch,  while  in  the 
case  under  consideration  it  is  at  least  fifteen  miles  away,  and 
a  large  volume  of  pure  water  mixes  with  the  water  from  the 
mines  before  reaching  the  ditch. 

The  case  in  the  23d  Cal.  480,  Phoenix  Water  Company  v. 
Fletcher,  shows  this  state  of  facts.  The  plaintiffs  were  the 
prior  appropriators  of  the  waters  of  the  stream,  and  had 
constructed  a  ditch  for  mining  purposes.  The  defendants 
erected  a  dam  across  the  stream  above  the  plaintiffs'  ditch 
for  the  purposes  of  a  saw-mill,  and  caused  the  waters  to 
flow  irregularly,  at  times  holding  it  back,  and  suffering  but 
a  small  quantity  to  flow  to  plaintiffs'  ditch,  and  at  other 
times  letting  it  down  in  greatly  increased  quantity,  and  that 
the  saw-dust  and  refuse  bark  of  the  mill  is  thrown  into  the 
stream  by  the  defendants,  clogging  and  filling  the  plaintiffs' 
ditch  and  reservoirs,  and  thereby  diminishing  their  capacity 
to  flow  and  hold  water,  and  that  thereby  serious  injury  was 
caused  to  the  plaintiffs.  The  exact  nature  and  extent  of  the 
injury  is  not  stated,  but  it  may  well  be  supposed  that  the 
irregularity  in  the  flow  caused  by  the  mill  and  dam  of  de- 
fendants was  the  chief  source  of  damage,  as  that  was  one 
of  the  principal  points  decided  in  the  case,  and  as  to  this 
point  the  doctrine  in  the  case  of  The  Bear  River  and  Auburn 
Water  and  Mining  Company  v.  The  New  York  Mining 
Company,  8  Cal.  327,  that  the  first  appropriator  of  water 
for  mining  purposes  is  entitled  to  have  the  water  flow  with- 
out material  interruption  in  its  natural  channel,  is  approved 
and  confirmed. 

In  the  case  under  consideration,  there  was  no  material,  if 
any,  interruption  in  the  flow  of  the  stream,  and  no  com- 
plaints from  the  miners  for  irregularity  in  the  supply  of 
water  from  the  ditch. 


1872.]  ATCHISON  v.  PETERSON.  569 

The  doctrine  that  the  first  appropriator  of  water  for  min» 
ing  purposes  is  entitled  to  the  waters  of  a  stream  as  against 
subsequent  appropriators  without  material  interruption  in 
the  flow  thereof,  or  in  quantity  or  quality,  is  fully  recog- 
nized. This  proposition  has  been  too  long  established  in 
this  mining  region  to  be  now  called  in  question,  and  I  apply 
this  doctrine  to  the  case  in  hand. 

The  water  of  Ten  Mile  creek,  at  the  place  where  it 
enters  plaintiffs'  ditch,  is  first-class  water  for  mining  pur- 
poses. It  is  of  the  same  quality  when  it  reaches  the  mines 
of  Last  Chance,  and  the  only  damage  to  the  plaintiffs,  in  con- 
sequence of  the  mining  of  defendants,  is  the  work  of  one 
man  for  from  ten  to  twenty  minutes  each  day  and  the  use 
of  the  waters  of  the  ditch  for  that  length  of  time,  and  this 
service  is  performed  by  a  man  working  by  the  month,  and 
his  pay  is  not  thereby  increased.  This  sand  gate  is  effect- 
ual in  its  operation,  and  the  task  of  cleaning  the  ditch  each 
spring  is  not  materially  increased  in  consequence  of  the 
mining  above. 

Then  it  only  remains  to  say  that  the  nature  and  extent  of 
the  injury  complained  of  is  not  such  as  would  authorize  or 
justify  the  granting  of  the  injunction  prayed  for. 

Mining  upon  the  upper  Ten  Mile  will  cause  the  waters  of 
the  stream  to  be  discolored,  and  to  carry  a  certain  amount 
of  sediment  for  many  miles  below  plaintiffs'  ditch,  and  to 
grant  the  injunction  would  necessarily  cause  the  defendants 
to  cease  mining. 

There  is  one  further  consideration.  The  defendants  are 
shown  to  be  responsible  for  their  acts.  Their  mining  claims 
are  shown  to  be  worth  from  $15,000  to  $20,000  each,  and 
this  testimony  is  not  disputed,  and  there  is  no  testimony 
tending  to  show  the  insolvency  of  defendants,  and  for  the 
purposes  of  this  case  they  must  be  taken  to  be  solvent  and 
responsible.  The  office  of  an  injunction  is  to  prevent  an 
irreparable  injury,  and  it  is  not  applicable  to  those  where 
the  parties  have  an  adequate  remedy  at  law.  In  this  case, 
if  the  defendants  have  injured  the  plaintiffs,  a  suit  for  dam 
VOL.  I.  — 72 


570  CALDWELL  v.  GANS.  [Aug.  T., 

ages  would  be  the  appropriate  remedy,  the  defendants  being 
responsible  and  solvent. 

It  would  require  a  very  strong  case  for  an  injunction  to 
justify  the  granting  thereof,  when  such  an  act  would  cause 
infinitely  more  damage  than  it  would  remedy,  and  this  is 
the  case  at  bar. 

The  matter  of  granting  or  refusing  an  injunction  is  very 
much  in  the  discretion  of  the  court,  and  we  think  a  sound 
discretion  was  exercised  in  the  case  at  bar. 

Judgment  affirmed. 


CALDWELL  et  al.,  appellants,  ».  GANS  et  al.,  respondents. 

REPLEVIN  UNDERTAKING — sureties — return  of  property.  The  sureties  in  an 
undertaking  in  replevin  are  released  from  their  obligation  to  return  the 
property,  if  it  is  taken  by  due  process  of  law,  without  their  fault,  and  held 
or  sold,  so  that  a  return  is  rendered  impossible. 

REPLEVIN — possession  of  property — attachment.  The  proceedings  in  replevin 
give  a  right  to  the  temporary  possession  of  the  property  without  any  title, 
until  the  right  of  possession  is  tried  and  determined,  and  do  not  impair  the 
lien  of  an  attachment  that  has  been  levied  on  the  property. 

REPLEVIN  UNDERTAKING  —  obligation  of  sureties.  The  sureties  in  an  under- 
taking in  replevin  must  return  the  property  after  a  judgment  has  been 
rendered  for  such  return,  if  it  is  in  their  power  so  to  do ;  and  they  are  en- 
titled to  the  property,  if  they  pay  the  judgment  in  the  suit  in  which  the 
property  has  been  attached. 

REPLEVIN  UNDERTAKING  —  compliance  with  —  condition.  The  condition  of  a 
replevin  undertaking,  to  return  the  property,  is  complied  with,  if  tho 
sheriff  acquires  possession  of  the  same  under  a  subsequent  attachment  or 
execution. 

EVIDENCE  —  replevin  undertaking  —  defense  of  sureties.  It  is  not  competent  for 
the  sureties,  in  a  replevin  undertaking,  to  prove  that  the  owner  had  no  at- 
tachable interest  in  the  property,  or  that  the  attaching  creditor  was  not 
injured  by  their  failure  to  return  the  same. 

A/>pealfrom  the  Third  District,  Lewis  and  Olarke  County. 

THIS  case  was  tried  in  July,  1871,  by  a  jury,  that  returned 
a  verdict  for  Gans.  The  court,  WADE,  J.,  overruled  the 
motion  for  a  new  trial.  The  facts  appear  in  the  opinion. 


1872.]  CALDWELL  v.  GANS.  571 

GHUMASEBO  &  CHAD  WICK,  for  appellants. 

The  first  ground  of  defense  to  this  case,  that  the  sureties 
were  released  by  the  sheriff  retaking  the  property  upon  a 
second  writ  of  attachment,  is  untenable.  There  is  no  author- 
ity in  law  to  sustain  such  a  proposition.  Justice  would  be 
easily  defeated  if  this  is  law.  The  lien  of  the  first  attaching 
creditor  is  destroyed  by  the  acts  of  third  parties,  in  replevy- 
ing  and  attaching  the  property,  and  he  is  without  a  remedy. 
Appellants  attached  the  property  of  Germain,  and  Dahler 
replevied  it,  by  giving  a  good  bond.  Clark  attaches  the 
same  property.  Is  this  a  defense  to  an  action  on  the  bond 
given  by  respondents  for  the  benefit  of  appellants  ?  Dahler 
confessed  that  he  had  no  action,  by  dismissing  his  suit,  and 
was  ordered  by  the  court  to  return  the  property,  so  that 
appellants'  judgment  in  the  attachment  suit  could  be  satis- 
tied.  Dahler  replevied  the  property,  after  Clark  attached 
it,  and  held  it  for  months,  until  it  was  sold  by  his  orders. 
Dahler  never  returned  the  property  to  the  sheriff,  and 
refused  to  comply  with  the  order  of  the  court.  If  it  had 
been  returned  to  the  sheriff,  it  would  have  been  held  to  sat- 
isfy the  attachments  of  appellants  and  Clark.  The  position 
« >f  respondents,  that  the  return  of  the  property  was  rendered 
i  in  possible  by  the  act  of  the  sheriff,  has  no  foundation  in  fact. 

The  evidence  shows  that  the  suit  of  Clark  against  Ger- 
maine  was  commenced  under  the  direction  of  Dahler,  to 
enable  him  to  get  the  property  again  into  the  hands  of  the 
sheriff,  and  delay  and  prevent  appellants  from  collecting 
their  claim  against  Germain.  The  cases  of  Clark  v.  Oer- 
maine,  and  Dahler  v.  Steele  (the  sheriff),  were  continued 
from  term  to  term,  nearly  two  years.  The  law  will  not 
benefit  a  party  who  resorts  to  such  trickery  and  chicanery. 

The  cases  of  Huntv.  Robinson,  11  Cal.  262,  and  Hayes 
\.  JoscpJii.  26  id.  535,  cited  by  respondents,  are  inapplicable 
T'  >  the  case  at  bar.  We  admit  that  the  decisions  are  good  law. 

Th-'  >henff  was  unable  to  find  the  property,  after  the 
remittitur  in  the  case  of  DaJiler  v.  Steele  had  been  filed  in 
the  court  below.  This  would  certainly  fix  the  liability  of 
Tin1  sun-ties  upon  the  replevin  bond.  Dahler,  by  his  acts, 


572  CALDWELL  v.  GANS.  [Aug.  T., 

sold  the  property  for  his  benefit,  and  placed  it  beyond  his 
power,  or  that  of  the  sureties,  to  return  it. 

The  court  erred  in  admitting  the  papers,  in  the  case  of 
Clark  v.  Germain,  and  Dahler  v.  Steele  (second  suit).  They 
constitute  no  defense  to  this  action.  The  admission  of  the 
papers  in  the  case  of  Dahler  v.  Germain,  and  the  report 
of  the  sale  of  the  property,  was  error.  They  were  irrele- 
vant, and  calculated  to  mislead  the  jury.  Hill,  on  New 
Trials,  312-315,  and  cases  cited  ;  Santillan  v.  Moses,  I 
Cal.  93;  Innis  v.  Steamer  Senator,  I  id.  461.  This  evi- 
dence had  nothing  to  do  with  the  defense  made  by  respond- 
ents. If  the  retaking  of  the  property  of  the  sheriff  released 
the  sureties  on  the  replevin  bond,  when  such  retaking  was 
proved,  the  defense  was  made  out. 

A  plea  that  the  title  to  property  replevied  was  not  in  the 
debtor  against  whom  the  attachment  issued,  is  bad  in  an 
action  on  the  replevin  bond,  after  a  determination  adverse  to 
the  plaintiff  in  replevin.  Smith  v.  Lisher,  23  Ind.  500 ; 
Mitchel  v.  Ingram,  38  Ala.  395. 

The  appellants  were  not  made  parties  to  the  suit  of  DaJilet 
v.  Germain,  for  the  foreclosure  of  Dahler' s  mortgage. 
They  were  not  bound  by  the  decree  therein,  and  the  intro- 
duction thereof,  as  evidence,  was  error. 

The  court  erred  in  its  instructions.  The  question  of  the 
power  of  the  sheriff  to  return  the  property  had  nothing  to 
do  with  the  case.  If  the  property  had  been  returned,  the 
sureties  in  both  replevin  cases  would  have  been  relieved, 
and  the  judgments  of  appellants  and  Clark  could  have  been 
satisfied  by  the  sheriff. 

The  court  had  no  right  to  modify  instructions  that  were 
law  and  applicable  to  the  evidence.  Conrad  v.  Lindley,  2 
Cal.  173  ;  Russell  v.  Amador,  3  id.  402  ;  Jamson  v.  Quiveyy 
5  id.  491. 

The  property  was  not  in  the  possession  of  the  coroner  for 
Dahler  as  held  by  the  court.  Civ.  Prac.  Act,  §  104. 

SHOBER  &  LOWBY  and  E.  W.  TOOLE,  for  respondents. 
When  the  property  came  again  into  the  hands   of  the 


1872.]  CALDWELL  v.  GANS.  678 

sheriff,  as  appears  by  the  evidence  in  this  case,  the  condi- 
tion of  the  replevin  bond  to  return  the  property  was  ful- 
filled. Hunt  v.  Robinson,  11  Cal.  262. 

After  the  replevin  suit  had  been  dismissed,  it  left  the 
parties  to  settle  the  question  as  to  the  value  of  the  property 
and  the  right  of  possession,  on  the  undertaking  in  the  case. 
Mills  v.  Gleason,  21  Cal.  280.  The  question  as  to  who  had 
the  actual  possession  of  the  property  was  properly  sub- 
mitted to  the  jury. 

The  undertaking  was  given  to  the  sheriff  (Steele)  as  if  he 
was  a  trespasser  in  the  case.  What  right  had  appellants  to 
bring  this  suit  in  their  names  ?  It  is  not  alleged  that  Steele 
was  the  trustee  of  an  express  trust,  and  there  is  no  assign- 
ment of  the  bond. 

If  the  sheriff  retook  the  property  and  let  it  go  again,  he 
must  look  to  the  second  bond  ;  the  first  is  discharged. 
Hunt  v.  Robinson,  11  Cal.  262  ;  Hayes  v.  Josephi,  26  id- 
535  ;  Curiac  v.  Packard,  29  id.  198. 

The  complaint  is  defective  in  alleging  that  the  property 
was  held  by  the  sheriff  for  appellants  and  other  creditors. 
Respondents'  demurrer  should  have  been  sustained. 

Daliler  dismissed  his  first  replevin  suit  because  the  sheriff 
retook  the  property  and  had  it  in  his  possession. 

WADE,  C.  J.  This  is  an  action  on  a  replevin  bond,  and 
the  cause  comes  into  this  court  on  appeal  from  a  judgment 
for  defendants  in  the  court  below. 

A  statement  of  the  facts,  as  shown  by  the  record,  will  be 
necessary  to  a  correct  understanding  of  the  case. 

On  the  29th  day  of  January,  1870,  the  plaintiffs  com- 
menced a  suit  in  attachment  against  one  Germain,  and 
levied  upon  certain  personal  property  belonging  to  Ger- 
main, which  at  that  time  was  in  the  possession  of  one 
Dahler,  by  virtue  of  a  mortgage  by  Germain  to  Dahler, 
July  1,  1869. 

On  the  3d  day  of  February,  1870,  four  days  after  the 
plaintiffs'  attachment,  Dahler  commenced  his  action  against 


574  CALDWELL  v.  GANS.  [Aug.  T., 

Steele,  sheriff,  and  replevied  the  attached  property,  and 
herein  the  undertaking  or  bond  in  replevin  was  given  upon 
which  this  suit  is  instituted.  In  this  action  such  proceed- 
ings were  had  as  that,  on  the  15th  day  of  March,  1870, 
the  action  was  dismissed,  and  judgment  for  the  return  of 
the  property  duly  given ;  but  prior  to  this,  and  while  the 
action  was  still  pending,  to  wit,  on  the  12th  day  of  March, 

1870,  the  property  was  again  attached  at  the  suit  of  one 
Clarke  against  Germain,  and  taken  into  the  possession  of 
Steele,  sheriff,  and  upon  the  same  day  was  again  replevied 
by    Dahler.      On    the    23d    day  of    March,    1870,    these 
plaintiffs  recovered  a  judgment   against  Germain  for  the 
amount  of  their  claim,  upon  which  execution  was  issued 
and  returned  unsatisfied,  and  on  the  27th  day  of  January, 

1871,  they  bring  their  action  against  these  defendants,  who 
were  and  are  sureties  upon  the  bond  in  replevin  in  the  first 
suit    of   Dahler  against  Steele,    sheriff,   and  on  the   22d 
day   of   July,   1870,    Dahler  forecloses  his  mortgage  and 
procures  a  decree  to  sell  the  property  covered  by  his  mort- 
gage, which  is  the  same  property  levied  upon  by  plaintiff' s 
attachment,  and  replevied  by  Dahler,  and  again  attached 
by  Clarke ;  and,  in  pursuance  of  such  decree,  the  sheriff 
takes  possession  of  the  property  and  sells  the  same,  realiz- 
ing therefrom  an  amount  insufficient  to  satisfy  said  decree. 

Upon  this  state  of  facts,  are  these  defendants  liable  upon 
their  undertaking  ? 

The  condition  of  the  undertaking  or  bond  of  defendants 
is  "for  the  prosecution  of  the  said  action  for  the  return  of 
said  property  to  said  defendant,  if  return  thereof  be  ad- 
judged, and  for  the  payment  to  said  defendant  of  such  sum 
as  may,  from  any  cause,  be  recovered  against  the  plaintiff.'' 

The  action  of  Dahler  against  Steele,  sheriff,  was  dismissed, 
and  judgment  for  return  of  the  property  duly  rendered, 
and  return  was  not  made,  and  thereby  the  condition 
of  the  undertaking  was  broke] i,  but  prior  to  the  judg- 
ment of  return,  and  while  the  property  was  in  posses- 
sion of  Dahler,  by  virtue  oi'  the  undertaking  of  defend- 
ants, it  was  attached  at  the  suit  of  Clarke,  and  thereby 


1872.]  CALDWKLL  c.  GANS.  576 

came  again  into  the  possession  of  Steele,  sheriff,  defend- 
ant in  the  suit  of  claimant.  This  attachment  of  Clarke, 
by  virtue  of  which  the  property  was  taken  from  the  posses- 
sion and  control  of  claimant  and  his  sureties,  rendered  it 
impossible  for  the  sureties  to  perform  the  judgment  for  a 
return  of  the  property.  By  reason  of  a  lawful  process 
issued  from  the  court  the  property  is  placed  be}7ond  the 
reach  of  the  claimant  and  his  sureties,  and  without  any 
fault  or  neglect  on  their  part,  and  by  operation  of  law,  the 
property  is  taken  beyond  their  control. 

Does  this  inability  of  the  sureties  to  perform  the  judg- 
ment of  return,  relieve  and  release  them  from  liability  upon 
their  undertaking  ? 

At  the  time  the  proceedings  in  replevin  were  instituted, 
and  the  undertaking  given,  the  property  was  in  the  custody 
of  the  law.  The  sheriff  held  it  by  virtue  of  plaintiffs'  attach- 
ment, and  for  the  plaintiffs,  and  it  will  be  necessary  to 
inquire  into  the  nature  and  extent  of  plaintiffs'  lien  under 
this  process. 

If  plaintiffs'  lien  upon  the  property  continued  in  full  force 
and  operation  notwithstanding  the  proceedings  and  under- 
taking in  replevin,  and  their  rights  were  not  thereby  injured 
or  impaired,  and  if,  after  judgment  of  return  in  the  replevin 
suit,  the  property  was  subject  to  their  control  as  against  de- 
fendants, and  if  Clarke  acquired  no  rights  by  virtue  of  his 
attachment  except  subject  to  the  rights  of  the  plaintiffs, 
then  to  hold  that  the  sureties  are  still  liable  upon  the  under- 
taking would  place  the  means  in  the  hands  of  plaintiffs  to 
collect  their  debt  twice,  once  from  the  property  attached, 
and  once  from  these  defendants  upon  their  undertaking 
for  if  the  lien  of  the  attachment  continues,  and  thereby  sub- 
jects the  property  to  the  control  of  plaintiffs,  they  could 
immediately  possess  themselves  of  the  property,  and  by  the 
very  act  of  obtaining  possession  would  cause  a  forfeiture  of 
the  bond,  so  that  by  securing  their  debt  from  the  property 
they  create  a  liability  against  defendants  by  which  they  are 
again  entitled  to  collect  their  debt. 

The  theory  upon  which  the  sureties  are  held  upon  their 


676  CALDWELL  v.  GANS.  [Aug.  T., 

undertaking,  after  a  judgment  for  return  of  the  property, 
and  default  thereon  is,  that  they  have  the  property  in  their 
possession  or  under  their  control,  and  that  they  have  the 
power  to  return  it.  If  the  sureties  pay  the  judgment  they 
are  entitled  to  the  property.  The  law  gives  them  the  prop- 
erty for  the  judgment.  And  their  liability  comes  from  the 
fact  that  having  the  property  they  prefer  to  keep  it  and  pay 
the  value  thereof.  But  if  plaintiffs'  lien  continues  on  the 
property  after  judgment  of  return  is  given,  and  they  thereby 
have  the  right  to  control  it  to  the  exclusion  of  the  sureties, 
and  it  is  placed  beyond  their  reach  by  authority  of  the  law, 
then  to  render  judgment  against  them  would  produce  this 
result :  the  plaintiffs  would  have  the  property  whereby  their 
debt  is  secured,  and  also  a  judgment  for  its  value  whereby 
it  is  secured  again,  while  the  sureties,  instead  of  having  the 
property  as  they  are  supposed  to  have  as  a  compensation 
for  the  judgment  for  its  value,  would  be  entirely  without 
remedy,  and  this  injustice  would  follow :  That  plaintiffs 
would  collect  their  debt  twice,  and  once  from  innocent 
parties  who  have  received  no  consideration  therefor  and  who 
have  been  guilty  of  no  neglect  in  the  premises. 

The  law  will  not  thus  lend  its  aid  to  rob  one  person  that 
another  may  receive  twice  what  belongs  to  him,  and  the 
result  of  this  case  must  turn  upon  these  questions : 

1.  Did  plaintiff's  lien,  by  virtue  of  his  attachment,  con- 
tinue, notwithstanding  the  proceedings  in  replevin  ?  and, 

2.  The  property  coming  again  to  the  possession  of  the 
sheriff  by  virtue  of  Clarke' s  attachment,  and  thereby  being 
placed  beyond  the  power  of  sureties  to  return   the  same, 
does  not  such  inability  of  the  sureties,  and  such  possession 
of  the  sheriff,  fulfill  the  condition  of  the  undertaking  to 
return  the  property  ? 

As  applicable  to  the  foregoing  questions,  we  think  the 
following  propositions  can  be  maintained : 

1.  The  possession  of  goods  in  replevin  by  virtue  of  the 
undertaking  is  a  temporary  possession,  and  continues  only 
until  the  right  of  possession  has  been  tried  and  settled.  If, 
after  giving  the  undertaking,  the  plaintiff  should  sell  the 


1872.]  CALDWELL  v.  G-ANS.  577 

property,  the  purchaser  would  acquire  only  the  title  of  the 
plaintiff,  which  might  be  no  title  at  all.  The  plaintiff  could 
sell  only  the  title  he  possesses,  and  that  title  depends  upon 
the  result  of  the  trial.  If  it  were  true  that,  by  giving  the 
undertaking,  the  title  to  the  property  was  thereby  trans- 
ferred, then  it  would  follow  that  the  plaintiff  could  sell  and 
convey  a  complete  title ;  but  this  cannot  be  the  case,  for  the 
reason  that  the  undertaking  contemplates  a  return  of  the 
property  if  judgment  of  return  be  given,  and  a  sale  before 
judgment  would  defeat  the  very  purpose  of  the  suit.  The 
object  of  the  action  is  the  specific  property  in  question,  and 
judgment  for  the  value  is  only  given  when  the  property 
cannot  be  reached. 

2.  If  the  undertaking  carries  with  it  the  title,  the  prop- 
erty would  be  subject  to  levy,  execution  and  sale,  and 
thereby  the  primary  object  of  the  suit,  the  property  itself, 
would  be  defeated.  And  if  the  property  is  subject  to  exe- 
cution and  sale,  the  law  would  thereby  authorize  the  means 
whereby  a  return  of  the  property  would  be  rendered  impos- 
sible, and  the  discharge  of  the  undertaking  would  be 
defeated,  and  yet  the  sureties  would  be  subject  to  a  penalty 
for  failing  to  perform  it. 

Upon  this  subject  we  adopt  the  language  of  Justice 
MCLEAN  in  Hogan  v.  Lucas,  10  Pet.  400,  and  say:  "If 
the  property  be  liable  to  execution,  a  levy  must  always 
produce  a  forfeiture  of  the  condition  of  the  bond,  for  a 
levy  takes  the  property  out  of  the  possession  of  the  claim- 
ant and  renders  the  performance  of  the  bond  impossible. 
Can  a  result  so  repugnant  to  equity  and  propriety  as  this  be 
sustained  ?  Is  the  law  so  inconsistent  as  to  authorize  the 
means  by  which  the  discharge  of  a  legal  obligation  is  de- 
feated, and  at  the  same  time  exact  a  penalty  for  the  forfeit- 
ure? This  would,  indeed,  be  a  reproach  to  the  law  and  to 
justice.'1 

This  theory  would  give  the  property  to  a  party  confes- 
sedly in  the  wrong,  and  authorize  him  to  convert  it  to  his 
own  use  at  pleasure,  while  he  could  only  be  held  to  account 

VOL.  I. —73. 


678  CALDWELL  v.  GANS.  [Aug.  T., 

for  its  value.     The  law  does  not  give  any  such  privilege  to 
a  wrong-doer. 

3.  If  the  undertaking  in  replevin  gives  only  a  temporary 
right  to  the  possession  of  the  property,  and  does  not  carry 
with  it  the  title,  then  the  lien  of  the  attachment  is  not  dis- 
turbed or  impaired,   and,  after  judgment  of  return,  the 
attachment    controls    the  property.     And,   if   subsequent 
attachments  or  executions  should  be  levied  upon  the  prop- 
erty during  the  pendency  of  the  proceedings  in  replevin,  or 
afterward,  such  attachments  or  executions  would  be  sub- 
ject to  the  lien  of  the  first  attachment;  and  if  the  prop- 
erty, by  virtue  of  such  second  execution   or  attachment, 
should  come  again  to  the  possession  of  the  sheriff,  the  con- 
dition of  the  replevin  bond  to  return  the  property  is  ful- 
filled. 

4.  If  after  the  undertaking  in  replevin  is  given,  the  prop- 
erty is  again  taken  by  due  process  of  law,  and  held  or  sold, 
and  thereby  a  return  is  rendered  impossible,  this  fact  would 
discharge  the  obligation  of  the  sureties  to  return  the  prop- 
erty. 

In  support  of  the  foregoing  propositions  we  cite  the  fol- 
lowing authorities  :  Hunt  v.  Robinson,  11  Cal.  262  ;  Buckle 
v.  Luce,  1  Comst.  171  ;  Lockwood  v.  Perry,  9  Mete.  444 ; 
McRea  v.  McLean,  3  Porter,  138 ;  Evans  v.  King,  7  Mo. 
411  ;  Hogan  v.  Lucas,  10  Pet.  400 ;  Drake  on  Attach., 
§§  290,  299,  303. 

Suppose  that  the  sheriff,  by  virtue  of  an  execution,  levies 
upon  the  property  of  A  and  advertises  the  same  for  sale  ; 
B  claiming  the  property  replevins  it,  causes  an  undertak- 
ing to  be  given  and  obtains  possession  of  the  property.  The 
suit  in  replevin  results  in  favor  of  the  defendant,  and  judg- 
ment for  return  is  given,  and  immediately  the  sheriff,  by 
virtue  of  his  execution,  repossesses  himself  of  the  property, 
thereby  placing  it  beyond  the  power  of  B  or  his  sureties  to 
perform  the  judgment  of  return,  and  thereby  creating  a 
breach  of  the  undertaking.  Can  it  be  contended  that  the 
execution  creditor  could  thus  secure  the  property  and.  by 
his  own  act.  cause  a  forfeiture  of  the  undertaking,  and  at 


1872.]  CALDWKLL  c.  GANS.  579 

the  same  time  have  a  remedy  against  the  sureties  for  breach 
of  their  bond  ?  Or  in  the  case  supposed,  if  there  was  a 
second  execution  upon  the  property,  during  the  pendency 
of  the  proceedings  in  replevin,  whereby  the  property  came 
into  the  possession  of  the  sheriff  and  was  sold,  and  by  opera- 
tion of  law  was  placed  beyond  the  reach  of  the  sureties  or 
claimant,  could  it  be  claimed  that  the  sureties  would  be 
held  for  a  return  of  the  property  when  the  law  had  made 
such  return  impossible  ? 

Both  reason  and  authorities  fully  warrant  us  in  saying 
that  the  law  does  not  thus  stultify  itself,  and  we  say  that  the 
lien  of  attachment  continues  unimpaired  during  the  pro- 
ceedings in  replevin,  and  when  the  same  property  came 
again  into  the  hands  of  the  sheriff,  by  virtue  of  subsequent 
attachments  or  executions,  the  condition  of  the  undertaking 
in  replevin  to  return  the  property  was  fulfilled  and  the 
sureties  discharged. 

In  the  case  of  Hunt  v.  Robinson*,  11  Cal.  262,  this  view 
is  fully  maintained.  In  that  case  Tread  well  commenced  a 
suit  against  David  Jones  by  attachment,  which  was  levied 
up  on  certain  personal  property  by  the  plaintiff,  Hunt,  as 
sheriff.  Mary  Jones,  wife  of  David  Jones,  claimed  the 
property  as  sole  trader,  and  commenced  her  action  of  re- 
plevin, and  obtained  possession  of  the  property  upon  giving 
an  undertaking  in  replevin  with  these  defendants  as  sureties. 
The  replevin  suit  was  decided  on  the  5th  day  of  February, 
1855,  in  favor  of  Hunt,  and  a  motion  made  for  a  new  trial 
by  Mrs.  Jones,  which  was  overruled  on  the  9th  of  March. 
1855.  Tread  well  obtained  judgment  against  David  Jones 
November  30,  1854.  On  the  18th  of  February,  1855,  cer- 
tain executions  in  favor  of  other  creditors  of  David  Jones 
being  in  the  hands  of  Hunt,  plaintiff,  were  levied  upon  the 
same  property,  and  the  property  sold  about  the  1st  of  Feb- 
ruary. The  sheriff  being  in  doubt  as  to  which  of  the  sev- 
eral creditors  were  entitled  to  the  proceeds  of  the  sale,  paid 
the  money  into  court,  and  lilecl  his  bill  of  interpleader, 
making  the  creditors  parties.  Upon  the  hearing  the  court 
decided  that  the  second  HMSS  of  creditors  were  entitled  ;o 


580  CALDWELL  «.  GANS.  [Aug.  T., 

the  proceeds.  From  this  decision  there  was  no  appeal.  On 
the  17th  day  of  March,  1855,  Hunt  issued  an  execution 
upon  the  judgment  obtained  by  him  in  the  replevin  suit, 
which  was  returned  unsatisfied.  The  sheriff  then  brought 
his  suit  against  the  sureties  in  the  replevin  bond  and  ob- 
tained a  judgment  against  them  for  the  assessed  value  of 
the  property  replevied,  and  the  defendants  appealed. 

In  many  important  particulars  this  case  is  parallel  to  the 
one  at  bar.  In  this  case  the  property  is  attached,  it  is  then 
replevied,  and  during  the  pendency  of  the  suit  in  replevin, 
the  same  property  is  taken  upon  execution  in  favor  of  other 
creditors  of  Jones  and  sold,  by  reason  of  which  subsequent 
execution  and  sale,  the  property  comes  again  to  the  pos- 
session of  the  sheriff,  and  is  placed  beyond  the  reach  of  the 
sureties  to  perform  the  judgment  of  return.  In  the  case  at 
bar  the  property  is  attached  by  Caldwell  and  Ingram.  It  is 
then  replevied  by  Dahler,  and  during  the  pendency  of  the 
suit  in  replevin,  the  same  property  is  attached  by  Clarke, 
and  comes  again  to  the  possession  of  the  sheriff,  and  is  sub- 
sequently sold  by  virtue  of  Dahler' s  mortgage,  and  the 
sureties  are,  by  virtue  of  said  subsequent  attachment  and 
sale,  prevented  from  performing  the  judgment  of  return. 
In  both  cases  there  was  a  judgment  for  return  of  the  prop- 
erty, and  in  either  case  the  sureties  in  the  undertaking  were 
prevented  from  making  return  by  subsequent  levies  in 
attachment  or  execution  upon  the  same  property. 

In  the  case  referred  to  (Huntv.  jRobinsori),  the  court  make 
an  elaborate  and  exhaustive  examination  of  the  authorities, 
and  reverse  the  judgment  against  the  sureties,  for  the  rea- 
son, that  when  the  property  came  again  to  the  possession 
of  the  sheriff,  by  virtue  of  the  subsequent  executions,  the 
condition  of  the  replevin  bond  to  return  the  property  was 
fulfilled,  and  for  the  further  reason,  that  to  hold  otherwise, 
would  impose  upon  the  party  replevying  the  property  the 
extraordinary  risk  of  having  to  pay  the  judgment,  and  also 
to  lose  the  property. 

W(j  adopt  this  view,  and  say  :  That  according  to  every 
principle  of  law  and  practice,  if  the  sureties  in  the  under- 


1S72.]  CALDWELL  v.  GANS.  681 

taking  in  replevin  are  compelled  to  pay  the  value  of  the 
property,  they  are  entitled  to  the  property  itself.  But  it  is 
conceded  that  they  cannot  get  the  property,  that  having 
been  taken  from  them  and  sold  by  virtue  of  subsequent  exe- 
cutions, and  if  a  judgment  should  be  rendered  against  them 
for  the  value  of  the  property,  they  would  be  compelled  to 
pay  for  what  they  never  enjoyed,  and  this  without  any  fault 
or  neglect  on  their  part,  and  purely  by  operation  of  law 
over  which  they  had  no  control. 

Again  :  If  a  judgment  is  rendered  against  these  sureties, 
this  result  must  follow  :  Germain  who  is  justly  indebted  to 
these  plaintiffs,  and  against  whom  they  have  obtained  a  judg- 
ment, would  be  enabled  to  pay  the  judgment  without  part- 
ing with  any  of  his  property,  while  these  sureties  would  be 
compelled  to  pay  for  what  the  law  had  taken  from  them, 
and  for  which  they  have  not  received  any  benefit,  and  thus 
the  defendant  in  attachment  or  execution  obtains  two  prices 
for  his  property.  "  This,  indeed,  would  be  a  reproach  to 
law  and  justice." 

But  the  theory  that  the  replevin  of  Dahler  does  not  de- 
stroy the  lien  of  Caldwell  and  Ingram' s  attachment  does 
justice  to  all  the  parties.  Clarke's  attachment  is  subject 
thereto,  and  is  a  subsequent  lien,  and  the  property  coming 
again  into  the  possession  of  the  sheriff,  the  lien  of  plaintiffs 
as  well  as  that  of  Clarke  is  preserved  ;  the  plaintiffs  are 
placed  in  the  same  position  as  before  the  replevin  suit,  the 
property  is  in  the  hands  of  the  sheriff,  the  lien  of  plaintiff's 
is  unimpaired,  and  the  only  damage  plaintiffs  could  have 
suffered  would  have  been  the  detention  of  the  property 
from  the  date  of  plaintiffs'  suit  to  the  date  of  Clarke's, 
which  was  but  a  few  days,  and  the  damage  to  the  plaintiffs 
for  this  detention  from  the  sheriff  could  be  only  nominal  in 
any  event. 

5.  The  record  shows  that  Dahler  foreclosed  his  mortgage 
against  Germain  and  procured  a  decree  and  order  of  sale, 
and  that,  by  virtue  of  such  proceedings,  the  sheriff  sold  the 
property  in  question,  and  applied  the  proceeds  thereof  to 
satisfy  said  decree1.  These  proceedings  demonstrate  the  fact 


582  CALDWELL  a.  GANS.  [Aug.  T., 

that  plaintiffs  obtained  no  possible  interest  in  the  property 
attached,  and  that  they  were  not  in  any  manner  injured  by 
the  replevin  of  the  property  by  Dahler,  and  that  Germain 
had  no  attachable  interest  in  the  property.  This  proof  is 
incompetent  in  a  suit  against  sureties  upon  a  replevin  bond. 
Neither  in  such  a  case  would  it  be  competent  to  show  the 
property  in  the  plaintiff  in  replevin,  or  that  he  was  a  part 
owner  therein,  or  that  the  property  belonged  to  a  stranger. 
The  obligation  of  the  sureties  in  the  undertaking  is  to  return 
the  property  if  judgment  of  return  be  awarded,  and  they 
are  not  relieved  from  this  obligation  by  showing  that  the 
attaching  creditor  is  not  injured  by  their  failure  to  return 
the  property.  Title  is  not  the  subject  of  inquiry  in  such  a 
suit.  But  the  record  in  the  case  of  Dahler  against  Germain 
shows,  that  after  the  plaintiffs'  attachment,  and  after  the 
undertaking  in  replevin  was  given,  the  property  was  again 
taken  by  process  of  the  law  and  sold,  and  that  its  return 
was  thereby  made  impossible.  This  proof  shows  that  the 
property  came  again  to  the  possession  of  the  sheriff,  and  as 
we  hold  that  such  possession  fulfills  the  condition  of  the 
undertaking  to  return  the  property,  this  testimony  showing 
such  return  was  properly  admitted  and  received  in  evi- 
dence. And  the  only  damage  that  could  result  to  the  plain- 
tiffs would  be  the  difference  between  the  sheriff  holding  the 
property  for  Dahler,  and  Dahler  holding  it  for  himself. 

But  Clarke's  attachment  is  conclusive  of  the  case.  It 
brings  the  property  again  to  the  possession  of  the  sheriff, 
and  thus  fulfills  the  condition  of  the  undertaking.  It  is  idle 
to  say  that  because  Dahler  immediately  replevied  the  prop- 
erty after  Clarke' s  attachment,  and  thereby  obtained  posses- 
sion, it  was  in  the  power  of  his  sureties  in  the  first  replevin 
suit  to  perform  the  judgment  of  return.  The  levy  of  the 
attachment  just  as  effectually  takes  the  property  beyond 
the  reach  of  the  sureties,  as  if  it  had  been  sold  on  execu- 
tion. And  when  the  property  is  delivered  to  Dahler  by  vir- 
tue of  the  second  suit  in  replevin,  a  second  undertaking  with 
sureties  is  given  for  the  return  of  the  property,  and  it  can- 
not be  taken  by  the  first  sureties  without  injuring  the  rights 


1872.]  CALDVV  ELL  ».  GANS.  583 

of  the  second  sureties.  Other  rights  have  intervened  that 
cannot  be  impaired.  And  suppose  the  second  sureties  held 
a  mortgage  upon  the  property  for  their  security,  which 
they  had  a  right  to  take  and  hold,  or  that  they  had  posses- 
sion of  the  property  for  the  same  purpose,  by  what  right 
could  the  first  sureties  take  it  from  them  ?  Their  equities 
are  equal  and  the  law  would  not  permit  them  to  interfere 
with  the  property  to  the  injury  of  the  second  sureties. 

Then  if  the  property  did  come  to  Dahler's  possession, 
and  was  so  in  his  possession  when  the  judgment  of  return 
was  given,  it  was  so  incumbered  with  the  rights  of  other 
parties  that  had  accrued  since  the  making  of  the  first  un- 
dertaking that  a  return  thereof  was  impossible,  and  this 
impossibility  resulted  from  the  operation  of  law,  and  over 
which  the  sureties  had  no  control. 

Suppose  the  second  suit  had  been  dismissed  and  judg- 
ment for  a  return  of  the  property  rendered,  or  suppose  a 
trial  had  resulted  in  such  a  judgment,  but  in  the  mean  time 
the  property  had  been  taken  by  the  first  sureties,  by  what 
principle  of  right  or  law  shall  the  second  sureties  lose  the 
property  and  be  made  to  pay  its  value  for  the  benefit  of  the 
first  sureties? 

The  only  reasonable  road  out  of  these  difficulties  is  to  say 
that  the  attachment  of  Clarke,  and  the  second  undertaking 
in  replevin,  places  the  property  beyond  the  power  of  the 
sureties  to  perform  the  judgment  of  return,  ani  this  dis- 
charges the  bond. 

The  instructions  to  the  jury  in  the  court  below  were  in 
conformity  with  the  views  herein  expressed,  and  we  find  no 
error  therein. 

The  judgment  of  the  court  below  is  affirmed. 


684  LOMME  v.  SWEENEY.  [Aug. 


LOMME,  respondent,  v.  SWEENEY  et  al.,  appellants. 

RKPLEVIN  UNDERTAKING  —  liability  of  sureties — damages.  The  sureties  in  an 
undertaking  for  the  claim  and  delivery  of  property,  that  is  in  the  hande 
of  a  sheriff  under  the  writ  of  attachment,  are  liable  for  the  damages  which 
may  be  sustained  by  the  officer  and  the  attaching  creditor,  by  a  failure  to 
return  the  property. 

REPLEVIN  UNDERTAKING — parties  —  action  for  damages  by  creditor.  An  action 
for  damages  against  the  sureties  on  a  replevin  undertaking,  which  has  been 
executed  and  delivered  to  the  sheriff,  can  be  maintained  by  and  in  the  name 
of  the  creditor  that  caused  the  officer  to  attach  the  property  that  has  been 
replevied. 

ATTACHMENT  —  officer  is  trustee  for  creditor.  An  officer  that  has  levied  upon 
property,  holds  the  same  and  receives  an  undertaking,  if  it  is  duly  taken 
from  his  possession,  as  a  trustee  for  the  benefit  of  the  attaching  creditor. 

PBACTICE  — judgment  for  return  of  property  —  value.  In  an  action  of  replevin, 
a  judgment  for  the  return  of  property,  which  does  not  fix  its  value,  if  a 
return  cannot  be  had,  is  irregular,  but  not  illegal  or  void. 

REPLEVIN  UNDERTAKING  —  sureties  —  statute  — judgment.  The  liability  of  the 
sureties  in  a  replevin  undertaking  cannot  be  extended  by  statute,  or  the 
judgment  entered  in  the  action. 

REPLEVIN  UNDERTAKING  —  contract  of  sureties.  The  sureties  in  a  statutory 
undertaking,  for  the  claim  and  delivery  of  property,  contract  that  the 
principal  will  return  the  property,  and  that  they  will  pay  any  judgment 
that  may  be  recovered  against  the  principal. 

CASES  DOUBTED.  The  cases  of  Nickerson  v.  Chatterton,  1  Cal.  568,  and  Clary  v. 
Holland,  24  id.  147,  doubted. 

REPLEVIN  UNDERTAKING  —  evidence  of  ownership.  The  defendants,  in  an  action 
on  a  replevin  undertaking,  cannot  show  that  the  title  is  in  a  stranger. 

REPLEVIN  UNDERTAKING  —  sureties  —  writ  retorno  habendo.  The  sureties  in 
a  replevin  undertaking  can  be  sued,  if  the  property  is  not  returned  after 
a  judgment  therefor,  before  a  writ  retorno  habendo  has  been  issued  and 
returned  unsatisfied. 

PLEADING  —  replevin  —  value  of  property.  In  an  action  of  replevin,  the  value 
of  property  must  be  alleged  by  the  party  that  demands  judgment  for  its 
value,  if  it  cannot  be  returned. 

REPLEVIN  UNDERTAKING  —  demand.  An  action  can  be  brought  against  the 
sureties  in  a  replevin  undertaking,  before  a  demand  has  been  made  for  a 
return  of  the  property. 


Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

THIS  action  was  tried  by  a  jury  that  found  for  Lomme, 
and  the  court,  WADE,  J.,  entered  judgment  thereon.  The 
facts  appear  in  the  opinion.  The  case  of  Lomme  v.  Kintz- 
ing,  is  reported  ante,  290. 


1872.]  LOMME  v.  SWEENEY.  586 

E.  W.  TOOLE  and  SHOBEB  &  LOWBY,  for  appellants. 

Respondent  had  no  right  to  sue  upon  the  undertaking 
executed  to  Roberts  in  the  replevin  suit.  The  undertaking 
was  never  assigned  to  respondent.  Civ.  Prac.  Act  1867, 
§§  109,  123,  131,  134,  137,  216,  217,  218.  The  sheriff  must 
make  the  judgment  creditor's  demand,  out  of  property 
attached  by  him.  The  bail-bond  was  substituted  for  the 
property  in  this  action.  The  rights  and  duties  of  the  sheriff 
are  the  same  at  common  law  as  by  statute.  Barb,  on  Part, 
22,  31,  34,  36;  Morris  on  Replev.  264;  1  Estee's  PI.  56, 
§  17 ;  Seaward  v.  Malotte,  15  Gal.  304 ;  Green  v.  BurJce,  23 
Wend.  489  ;  Foulks  v.  Pegg,  6  Nev.  136  ;  Rearce  v.  Hitch- 
cock, 2  N.  Y.  388 ;  Ostranderv.  Walter,  2  Hill,  329. 

The  sheriff  or  defendant,  in  the  replevin  suit,  is  the  real 
party  in  interest,  unless,  by  statute,  the  execution  creditor 
is  expressly  made  so. 

The  verdict  and  judgment  in  the  replevin  suit  are  not  such 
as  fix  the  liability  of  the  sureties  on  the  undertaking.  Civ. 
Prac.  Act  1867,  §  177;  Thomp.  on  Prov.  Rem.  36,  165, 
166  ;  Nicker  son  v.  QJiatterton,  7  Cal.  568 ;  Clary  v.  Holland, 
24  id.  147;  Dorsey  v.  Manlove,  14  id.  555;  Qallarati  v. 
Orser,  27  N.  Y.  324. 

Appellants  should  have  been  permitted  to  show  the  extent 
and  value  of  the  interest  of  Kintzing  in  the  property.  Sedg. 
on  Dam.  082,  583  ;  Thomp.  on  Prov.  Rem.  165 ;  Civ.  Prac. 
Act,  title  Claim  and  Delivery;  Wheeler  v.  McFarland,  10 
Wend.  322  ;  Dodge  v.  Wilbur,  10  N.  Y.  580 ;  Cresson  v. 
Stout,  17  Johns.  116  ;  Russell  v.  Butterfield,  21  Wend.  300. 

A  writ  of  retorno  Tiabendo  should  have  been  issued  and 
returned  in  the  replevin  suit.  Civ.  Prac.  Act  1867,  §  210, 
134  ;  Thomp.  on  Prov.  Rem.  38,  167. 

There   should   have   been   a   demand   for   the   property 
Respondent  should  have  given  an  indemnity  bond  to  the 
sheriff,  and  retained  the  property,  in  order  to  have  any 
rights  therein.     Skinner  v.  Stuart,  24  How.  Pr.  489  ;  David- 
son v.  Dallas,  8  Cal.  227. 

The  complaint  and  answer  in  the  replevin  suit,  fix  the 

value  of  the  property  at  $2,500,  and  the  undertaking  therein 
VOL  I. —74 


586  LOMME  v.  SWEENEY.  [Aug.  T., 

is  for  that  sum.  The  court  erred  in  admitting  evidence,  and 
allowing  the  jury  to  fix  such  value  at  double  such  sum. 
Drake  on  Attach.  309,  310,  327,  342 ;  Farley  v.  Bryant,  34 
Mo.  489. 

If  evidence  of  the  value  of  the  property  was  admissible, 
it  should  be  fixed  at  the  time  the  property  was  replevied, 
or  the  execution  came  to  the  sheriff. 

The  suit  abated,  so  far  as  C.  S.  Kintzing  was  concerned, 
after  filing  his  plea  and  proofs  in  bankruptcy.  Further 
proceedings  were  void  as  to  him  and  his  bondsmen,  pro 
tanto.  See  Bankrupt  Act,  March  2,  1867. 

The  court  erred  in  giving  respondent's  instructions,  and 
refusing  those  of  appellants' .  The  case  was  tried  upon  the 
wrong  theory.  If  respondent  could  recover  at  all,  the  $2, 500 
fixed  by  the  bond,  answer  and  complaint  in  the  replevin  suit 
should  be  credited  by  $1,300,  realized  by  respondent  out  of 
goods  sold  or  execution,  being  part  of  the  goods  so  replevied. 

CHUMASERO  &  CHADWECK,  for  respondent. 

Under  the  Civil  Practice  Act,  the  action  must  be  brought 
in  the  name  of  the  party  injured  by  the  replevin  suit,  and 
entitled  to  the  fruits  of  a  recovery,  upon  the  undertaking 
executed  in  the  case,  regardless  of  the  nominal  obligee. 
Respondent  is  the  real  party  in  interest  in  this  case.  The 
bond  was  not  given  for  the  benefit  of  the  sheriff.  The 
object  of  the  undertaking  sued  on  was  to  insure  the  return 
of  the  property  to  the  respondent,  or  the  payment  of  its 
value  in  case  of  its  non-return.  The  sheriff  attaches  prop- 
erty, as  trustee,  for  the  benefit  of  the  plaintiff.  The  char- 
acter of  the  interest  is  not  changed,  if  the  property  is  re- 
plevied. The  sheriff  cannot  be  regarded  as  the  real  party 
in  interest.  No  assignment  of  the  bond  was  necessary  to 
enable  respondent  to  sue.  Baiter  v.  Bartol,  7  Cal.  551 ; 
Summers  v.  Parish,  10  id.  351 ;  Bridge  v.  Niagara  I.  Co., 
I  Hall,  247 ;  Arnold  v.  Lyman,  17  Mass.  400 ;  Jackson  v. 
Mayo,  11  id.  147 ;  Wormouth  v.  Hatch,  33  Cal.  121. 

The  complaint  alleges  that  the  undertaking  was  delivered 
to  respondent.  This  was  a  sufficient  assignment  under  our 


1872.]  LOMME  ?;.  SWEENEY.  587 

act.  No  formality  is  necessary  to  transfer  a  chose  in  action. 
A  debt  may  be  assigned  by  parol  as  well  as  by  writing.  2 
Story's  Eq.  311 ;  Hinlde  v.  Wanger,  17  How.  (U.  S.)  368  ; 
Slaughter  v,  Faust,  4  Blackf.  380  ;  Briggs  v.  Dorr,  19 
Johns.  95.  A  bond  may  be  assigned  orally  by  delivery. 
Ford  v.  Stuart,  19  Johns.  342  ;  Dawson  v.  Cole,  16  id.  51. 

The  action  was  properly  brought  on  the  bond,  although 
the  judgment  was  not  in  the  alternative.  Whitney  v. 
Relimer,  26  Ind.  503. 

Appellants  could  not  show  title  to  the  property  in  any 
other  person  than  the  defendant  in  the  attachment  suit. 
MitcJiell  v.  Ingram,  38  Ala.  395 ;  Smith  v.  Lisher,  22  Ind. 
500 ;  Williams  v.  Vail,  9  Mich.  162  ;  Gray  v.  McLean,  17 
111.  404. 

The  alleged  bankruptcy  of  Kintzing  was  no  defense  in 
this  action.  Flagg  v.  Tyler,  6  Mass.  32. 

No  writ  de  retorno  or  demand  was  necessary  before  this 
suit  was  commenced.  Perreau  v.  Bevan,  8  D.  &  R.  72  ; 
Saunders'  PL  770  ;  Nicker  son  v.  Ohatterton,  7  Gal.  573  : 
Livingston  v.  Hammer,  7  Bosw.  671  ;  Ormsbee  v.  Davis, 
16  Conn.  578  ;  Peck  v.  Wilson,  22  111.  206. 

The  value  of  the  property  must  be  found  from  the  evi- 
dence. The  complaint  and  answer  in  the  replevin  case  do  not 
show  the  true  value.  The  respondent  was  entitled  to  prove 
-.md  recover  the  actual  damages  sustained. 


v-v 


E.  W.  TOOLE  and  SHOBER  &  LOWRY,  for  appellants,  in 

reply. 

The  cases  cited  by  respondent  are  those  where  the  bond 
is  given  to  the  sheriff  for  the  use  of  the  defendant.  The 
sheriff  claimed  a  special  property  in  this  suit,  and  the  bond 
was  delivered  to  the  coroner  for  his  benefit. 

The  bondsmen  contract  with  reference  to  res  adjudicata, 
so  far  as  principal  is  concerned.  In  this  case  there  has  been 
no  res  adjudicata  with  reference  to  the  value  so  as  to  bind 
the  principal.  No  opportunity  to  try  the  value  of  special 
property  of  sheriff  or  Kint/ing  has  ever  been  afforded  Wat- 
son, and  comes  for  first  timn>  on  suit  against  sureties. 


588  LOMME  v.  SWEENEY.  [Aug.  T. 

KNOWLES,  J.  This  cause  comes  to  this  court  on  appeal 
from  the  third  judicial  district.  The  record  presents  the 
following  facts  :  Lomme  commenced  an  action  to  recover  a 
debt  against  B.  C.  and  Charles  S.  Kintzing  for  the  sum  of 
$4,384.89,  and  interest  thereon.  As  auxiliary  to  this  action 
for  the  purpose  of  securing  any  judgment  he  might  obtain 
therein,  he  procured  the  issuance  of  a  writ  of  attachment 
which  the  sheriff,  W.  K.  Roberts,  levied  upon  certain  prop- 
erty as  belonging  to  the  Kintzings.  Afterward,  W.  S.  Wat- 
son brought  an  action  of  replevin  against  Roberts  and  came 
into  possession  of  this  property.  In  this  action  John  M. 
Sweeney  and  Anton  M.  Holter  entered  into  an  undertaking 
in  the  sum  of  $5,000  to  Roberts,  conditioned  that  the  said 
Watson  should  return  the  said  property  to  him  if  a  return 
should  be  adjudged,  and  that  he  would  pay  any  sum  of 
money  as  might  for  any  cause  in  said  action  be  recovered 
against  him. 

In  the  case  of  Lomme  against  the  Kintzings,  Lomme  re- 
covered a  judgment  for  the  sum  of  $4,954.93,  and  $552.5C 
costs.  In  the  action  of  Watson  against  Roberts,  Roberts 
recovered  judgment  against  Watson.  The  verdict  of  the 
jury  in  that  case  was  as  follows:  "We,  the  jury  in  the 
above-entitled  cause,  find  for  defendant."  Upon  this  ver- 
dict the  court  adjudged  that  tlie  defendant,  Roberts,  was 
entitled  to  a  return  of  the  property.  No  demand  was  made 
of  Watson  for  a  return  of  said  property  on  behalf  of 
Roberts  ;  nor  was  there  any  writ  issued  by  the  court  for  the 
purpose  of  taking  possession  thereof  and  returning  it  to 
Roberts.  There  was  no  assignment  of  the  undertaking 
executed  by  Sweeney  and  Holter  to  Lomme.  The  same  was 
delivered  to  him,  however,  by  Roberts,  and  he  brings  this 
action  in  his  individual  name.  It  may  be  proper  to  remark 
that  the  bill  of  exceptions  in  this  case  is  presented  to  the 
court  in  an  imperfect  condition,  and  not  as  prescribed  by 
law.  The  record  does  not  clearly  point  out  the  alleged 
errors  of  which  the  appellant  complains. 

As  the  respondents,  however,  make  no  objection  to  the 
record,  we  will  consider  the  imperfections  as  waived. 


1872.]  LOMME  t>.  SWEENEY.  589 

The  first  question  we  are  called  upon  to  determine  is,  as 
to  whether  or  not  Lomme  had  any  right  to  bring  this  action 
in  his  own  name  ;  whether  or  not  he  is  the  proper  party 
plaintiff  therein.  The  undertaking  was  made  payable  to 
Roberts.  In  what  capacity  did  he  hold  the  goods  taken 
from  him  by  Watson  ?  He  held  them  as  an  officer,  for  the 
purpose  of  preserving  the  lien  which  had  been  created 
therein  in  favor  of  Lomme  by  virtue  of  the  writ  of  attach- 
ment in  his  suit  against  the  Kintzings,  and  also  that  they 
might  be  made  subject  to  the  satisfaction  of  any  execution 
Lomme  might  procure  to  be  issued  against  those  parties  in 
this  action  against  them.  He,  likewise,  held  them  for  the 
purpose  of  returning  them  to  the  Kintzings,  should  Lomme 
fail  to  recover  judgment  against  them.  It  will  be  observed 
from  this  that  Roberts  had  but  a  special  property  in  these 
goods.  He  held  them  for  the  benefit  of  others.  His  posi- 
tion was  analogous  to  that  of  a  receiver.  "A  trustee  is  a 
person  in  whom  some  estate,  interest,  or  power  in  or  affect- 
ing property  of  any  description  is  vested  for  the  benefit  of 
another."  Hill,  on  Trust.  65. 

Lomme  had,  perhaps,  no  estate  in  these  goods,  but 
Roberts  was  exercising  a  power  over  them  for  his  benefit, 
and  hence  was  his  trustee.  A  trustee  can  maintain  an 
action  for  any  damage  to  property  he  may  hold  in  trust, 
and  the  amount  of  damages  he  may  recover  will  be  com  - 
mensurate  with  the  damages  done  to  his  cestul  que  trust 
and  to  his  individual  interest.  At  law  the  trustee  is  consid- 
ered as  holding  all  the  title  or  interest  of  his  cestui  que  trust. 
A.  stranger  would  not  be  allowed  to  set  up  an  outstanding 
equity  of  a  cestui  que  trust  for  the  purpose  of  lessening  a 
trustee's  damages  to  the  property  he  holds.  The  under- 
taking was  then  given  to  secure  all  damages  which  Roberta 
might  sustain  by  a  failure  to  return  the  goods  to  him, 
should  the  court  so  adjudge,  whether  those  damages  should 
accrue  to  him  in  his  individual  or  representative  capacity. 
Lomme  liad  a  right  to  have  these  goods  in  Robert's  hands  in 
order  that  they  might  be  taken  under  execution  to  be  sold 
to  satisfy  any  judgment  he  might  obtain  against  the  Kintz- 


590  LOMME  -e.  SWEENEY.  [Aug.  T.; 

ings.  The  fact,  however,  that  they  were  taken  on  legal  pro- 
cess from  the  possession  of  Roberts  would  be  a  sufficient 
legal  excuse  for  not  being  able  to  produce  the  goods.  The 
only  thing  Roberts  might  have  been  liable  for  would  have 
been  negligence  in  exacting  proper  security  from  Watson, 
for  a  sheriff  is  only  liable  for  negligence  in  such  cases. 
Lomme  was  really  the  person,  then,  who  was  damaged  by  a 
failure  of  Watson  to  return  the  goods,  and  the  undertaking 
was  given  to  secure  him  in  his  rights  concerning  the  goods. 
Roberts  occupied  the  position  of  a  trustee  of  an  express 
trust  in  receiving  the  undertaking  from  appellants.  A  trus- 
tee of  an  express  trust  is  defined  to  be,  in  our  statute,  a 
person  with  whom,  or  in  whose  name,  a  contract  is  made  for 
the  benefit  of  another.  See  Laws  of  1867,  136,  §  6. 

The  utmost  extent  of  signification  is  to  be  attributed  to 
this  term  "trustee  of  an  express  trust."  I  Whit.  Pr.  63. 

The  case  of  a  trustee  of  an  express  trust  is  an  exception 
to  the  rule,  that  every  action  must  be  prosecuted  in  the  name 
of  the  real  party  in  interest. 

"  The  fact,  however,  that  the  trustee  of  an  express  trust 
might  bring  an  action  in  his  own  name  does  not,  in  most 
instances,  preclude  the  beneficiary  or  real  party  in  interest 
from  likewise  bringing  suit  in  his  name,  and  the  instance  of 
a  party  for  whose  benefit  a  contract  was  made  is  a  case  in 
which  this  may  be  done.'*  See  1  Whit.  Pr.  64  ;  The  Camden 
Bank  v.  Rogers,  4  How.  63  ;  Lane  v.  The  Columbus  Insur- 
ance Co.,  2  C.  R.  65  ;  Baker  v.  Bartol,  7  Cal.  557  ;  Taaffe 
v.  Rosenthal,  id.  5]  4. 

For  these  reasons  we  consider  Lomme  a  proper  party 
plaintiff. 

The  second  question  presented  is,  the  liability  of  the  de- 
fendants under  the  judgment  entered  in  favor  of  Roberts 
and  against  Watson.  It  is  claimed  that  because  Roberts 
obtained  against  Watson  no  alternative  judgment  for  the 
value  of  the  property  in  case  a  return  could  not  be  had, 
that  these  defendants  are  not  liable  on  their  undertaking. 
That  they  made  themselves  liable  on  their  undertaking  only  to 
ufli  judgment  MS  Roberts  might  lawfully  obtain 


1872.  J  LOMME  v.  SWEENEY.  591 

against  Watson  ;  and  that  the  only  legal  judgment  Roberts 
could  obtain  against  Watson  was  for  a  return  of  the  prop 
erty,  or  its  value  in  case  a  return  could  not  be  had.  Now 
we  hold  that  a  judgment  for  a  return  of  the  property  was 
not  a  void  judgment,  but  at  the  worst  an  irregular  one.  An 
irregular  judgment  is  not  an  illegal  or  unlawful  one.  Johns- 
ton v.  Comley,  10  N.  Y.  570  ;  Ingersoll  v.  Bostwick,  22 
id.  425. 

An  irregular  judgment  will  support  an  execution  and 
may  be  enforced.  Rawley  v.  Howard,  23  Cal.  401. 

It  is  not  true,  however,  that  the  law  in  regard  to  the  judg- 
ment which  a  party  may  recover,  in  an  action  of  replevin, 
enters  into  and  forms  a  part  of  the  contract  which  sureties 
enter  into  in  an  undertaking  in  such  an  action,  so  as  to 
vary  the  same.  Sureties  in  such  an  undertaking  are  bound 
by  the  contract  they  sign.  Their  liability  cannot  be  ex- 
tended or  made  less  by  any  such  statute.  The  conditions 
of  such  an  undertaking  are  prescribed  by  law.  It  is  not 
claimed  that  the  undertaking  sued  upon  is  not  in  all  par- 
ticulars in  conformity  to  the  statute.  This  is  what  the  de- 
fendants undertook  for  Watson : 

"  For  the  prosecution  of  such  action,  for  the  return  of  the 
said  property,  if  return  thereof  be  adjudged,  and  for  the 
payment  to  the  said  defendant  of  such  sums  as  may  from 
any  cause  be  recovered  against  the  said  plaintiff. ' ' 

This  is  not  an  alternative  undertaking.  The  defendants 
did  not  contract  in  this  undertaking  that  Watson  should 
return  the  property  if  the  same  should  be  adjudged,  or 
they  would  pay  the  value  thereof.  They  contracted  both 
that  Watson  should  return  the  property  if  it  should  be  so 
adjudged,  and  pay  any  judgment  the  defendant  in  that 
action  might  recover  for  any  cause  for  money  against  him. 
If  the  plaintiff  in  that  action  failed  to  perform  any  one  <>!' 
the  things  the  sureties  had  undertaken  that  he  should,  the 
sureties  became  liable  on  their  undertaking  to  the  extent  of 
the  damages  suffered  for  such  cause.  A  judgment  for  the 
return  of  the  property  was  awarded,  and  the  property  not 
returned. 


LOMME  v.  SWEENEY.  [Aug.  T., 

The  oases  of  Nickerson  v.  Cliatterton,  7  Cal.  668,  and 
Clary  v.  Holland,  24  id.  147,  cited  by  the  appellants,  main- 
tain a  different  opinion  from  that  here  expressed.  The  lat- 
ter case,  however,  while  following  the  former  upon  the  doc- 
trine of  stare  detisis,  holds  the  following  language : 

"If  we  were  called  upon  to  construe  the  sections  as  an 
original  question,  unaffected  by  any  prior  decision  upon 
the  same  point,  we  might  be  disposed  to  hold  the  complaint 
sufficient  in  this  respect.  Such  was  our  impression  upon 
the  argument,  but  upon  a  careful  examination  of  the  decis- 
ions of  the  supreme  court  referred  to  in  the  argument,  we 
find  that  the  point  has  been  determined  the  other  way.'' 

The  point  in  that  case  was  raised  by  demurrer,  alleging 
that  the  complaint  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action,  for  the  reason  that  the  complaint  did  not 
show  a  judgment  in  the  alternative  either  for  a  return  of 
the  property  or  its  value. 

This  language  has  the  effect  to  destroy  certainly  the 
authority  of  the  case  of  Nickerson  v.  Ohatterton  to  a  con- 
siderable extent.  That  court,  after  a  mature  consideration, 
evidently  does  not  approve  of  the  principle  laid  down  in 
that  case,  and  are  forced  to  approve  of  it  for  different  rea- 
sons. In  direct  opposition  to  the  case  of  Nickerson  v. 
Ohatterton^  is  that  of  Whitney  et  al.  v.  Lehmer  et  al.,  26 
Ind.  504.  The  principle  upon  which  this  case  is  decided  is 
evidently  that  the  practice  in  an  action  of  replevin,  as  to  the 
verdict  and  judgment  that  may  be  entered  therein,  does  not 
affect  the  liability  of  the  sureties  in  an  undertaking  in  that 
action.  That  their  liability  is  fixed  by  their  undertak- 
ing and  for  a  breach  of  it  those  entering  into  the  same  were 
liable. 

The  case  of  Gallarati  v.  Orser,  27  N.  Y.  324,  it  is  claimed, 
announces  a  rule  in  accordance  with  that  of  Nickerson  v 
Chatterton,  and  adverse  to  that  expressed  by  this  court. 

The  judgment  considered  in  that  case  was  for  the  value 
of  the  property  only,  and  for  that  reason  it  was  held  that 
the  sureties  liable  on  an  undertaking  in  arrest  were  not  held. 
We  are  not  prepared  to  say  that  this  ruling  was  not  correct. 


1872.]  LOMME  v.  SWEENEY.  693 

The  sheriff,  for  having  discharged  a  defendant  from  arrest 
without  sufficient  bail,  was  held  to  be  liable,  as  sureties  had 
they  been  given  would  have  been.  One  of  the  provisions 
of  an  undertaking  in  such  a  case  is  the  same  as  required  in 
an  undertaking  in  replevin.  The  sureties  were  required  by 
the  law  to  undertake  that  the  defendant  would  produce  the 
property  and  pay  the  plaintiff  such  sum  as  might  for  any 
cause  be  adjudged  against  him.  Under  such  a  clause  as  the 
last,  it  was  claimed  that  the  sureties  would  be  held  liable 
when  the  j  udgment  was  for  the  value  of  the  property  only. 
The  court,  however,  held  otherwise.  There  is  reason  foi 
holding  that  the  provisions  of  the  statute,  in  relation  to  the 
judgment  for  money  that  should  be  entered  in  replevin, 
may  be  considered  as  explaining  this  clause  of  an  under- 
taking, and  that  sureties  undertake  only  to  pay  such  judg- 
ment as  should  be  properly  adjudged,  and  that  a  proper 
judgment  was  an  alternative  one  for  the  value  in  case  a 
return  could  not  be  had.  In  such  a  case  it  might  be  claimed 
that  the  judgment,  not  being  in  the  alternative,  did  vary  the 
contract  of  the  sureties.  This  view  of  this  question,  how- 
ever,  is  not  free  from  doubt.  In  that  case  one  of  the  judges 
dissented  from  the  opinion  of  the  court,  and  held  that  the 
judgment  was  only  an  irregular  one,  and  that  sureties  were 
held  on  an  irregular  judgment  the  same  as  their  principal. 
Arid  in  direct  conflict  with  that  opinion  is  the  case  of  Mason 
v.  RicJiards  et  al.,  12  Iowa,  73.  The  court  in  that  case  held 
that  the  judgment  for  the  value  of  the  property  ;nly  was 
irregular,  and  erroneous  but  not  void.  That  such  a  judg- 
ment could  be  enforced  against  the  principal,  and  that  the 
sureties  were  not  released,  but  liable. 

The  defendants  in  this  action,  however,  insist  that  our 
statutes  upon  the  subject  of  the  recovery  of  personal  prop- 
erty were  borrowed  from  California,  and  that  we  are  bound 
by  the  construction  put  upon  them  by  the  courts  of  that 
State.  The  statutes  in  question  substantially  existed  in  a 
great  many  States  of  this  Union  besides  California  at  the 
time  our  legislative  assembly  adopted  it.  California  bor- 
rowed it  from  New  York.  The  correct  appellation  for  our 
VOL.  I. -75 


594  LOMME  t>.  SWEENEY.  [Aug.  T., 

practice  is  the  New  York  Code  practice,  and  net  the  Cali- 
fornia Code  practice,  and  as  the  New  York  courts  had 
not  fully  determined  this  precise  point  when  our  legis- 
lative assembly  adopted  its  Code,  we  should  consider  our- 
selves free  to  determine  this  question  upon  principle, 
and  not  upon  authority.  The  defense  of  the  bankruptcy 
of  C.  S.  Kintzing,  set  up  by  defendants  in  this  action,  we 
think  wholly  untenable.  That  defense  was  set  up  by 
Kintzing  in  the  action  of  Lomme  v.  B.  C.  and  C.  S. 
Kintzing.  The  plaintiff  alleges  in  his  complaint  in  this 
action  that  he  recovered  judgment  against  the  Kintzings  for 
$4,954.93  in  that  action,  and  this  averment  is  not  denied  by 
the  answer  of  defendants. 

If  that  judgment  was  erroneous  it  cannot  be  attacked  in 
this  action.  It  is  not  a  void  judgment,  and  hence  cannot  be 
reviewed  in  a  collateral  action.  In  relation  to  the  right  to 
the  possession  of  the  property,  that  was  considered  and 
decided  in  the  action  between  Watson  and  Roberts.  If 
C.  S.  Kintziug  had  become  a  bankrupt,  his  assignee  in  bank- 
ruptcy might  be  entitled  to  the  possession  of  the  property, 
but  that  is  no  reason  why  Watson  should  be  entitled  to  take 
the  property  from  Roberts  and  hold  the  same.  He  claimed 
the  right  to  the  possession  through  the  Kintzinga  himself, 
and  not  under  C.  S.  Kintzing' s  assignee.  We  hold  that  the 
sureties  on  the  replevin  undertaking  had  no  right  to  intro- 
duce evidence  in  this  action  of  the  interest  of  the  Kintzings 
in  the  property  replevied.  The  answer  denies  that  the 
Kintzings  had  any  interest  in  property  that  was  the  subject 
of  the  attachment,  but  there  is  no  regular  allegation  of 
ownership  in  any  one  else.  There  is  no  plea  of  this  kind 
set  up  by  way  of  defense  such  as  would  be  required  in 
order  to  entitle  the  defendant  to  prove  the  same. 

Again,  where  the  question  of  who  is  the  actual  owner  of 
property  is  in  dispute,  we  do  not  think  that  the  defendants 
in  an  action  on  an  undertaking  in  replevin  ?an  set  up  title 
in  a  stranger,  and  in  that  action  compel  the  plaintiff  to 
litigate  his  title  to  the  property,  upon  which  there  had 
been  a  determination  between  the  plaintiff  and  the  principal, 
for  whom  the  sureties  became  liable. 


1872.]  LOMME  v.  SWEENEY.  596 

As  appears  from  the  record  in  the  action  of  replevin, 
Watson  claimed  to  be  the  owner  of  the  property  in  dispute, 
and  alleged  that  he  derived  title  by  purchase  from  the  Kint- 
2ings.  It  does  not  appear  in  this  case  from  the  exceptions 
taken  who  the  defendants  claimed  was  the  owner  of  the 
property.  If  it  was  the  assignee  of  C.  S.  Kintzing  in  bank- 
ruptcy, then  the  court  could  have  very  properly  have  held 
that  partnership  property  must  first  go  to  the  liquidation  of 
partnership  debts,  and  that  until  these  were  litigated  the 
property  could  not  pass  to  his  assignee. 

It  was  not  necessary  for  the  plaintiff  to  have  a  writ 
retorno  hdbendo  issued  and  returned  unsatisfied  before  he 
could  bring  this  action.  The  sureties  undertook  that  Wat- 
son should  return  the  property  if  a  return  thereof  should 
be  adjudged.  A  return  was  adjudged  and  Watson  failed 
to  return  the  property.  This  was  a  breach  of  the  undertak- 
ing. The  case  of  Nicker  son  v.  CTiatterton  decides  that  no 
writ  retorno  habendo  was  necessary  in  order  to  fix  liability 
of  the  sureties,  and  that  case  may  be  considered  as  very 
favorable  to  sureties. 

It  is  claimed  by  appellants  that  if  plaintiif  is  entitled  to 
recover  he  is  only  entitled  to  recover  damages  to  the  amount 
of  the  value  of  the  property  as  specified  in  the  complaint 
of  Watson  in  his  action  of  replevin.  In  a  complaint  in  an 
action  of  replevin  the  plaintiff  states  the  facts  which  entitle 
him  to  a  judgment.  If  he  wishes  a  judgment  for  the  value 
of  the  property  in  case  the  possession  of  the  same  is  not 
delivered  to  him,  he  must  allege  its  value.  This  is  the  basis 
of  his  right  to  recover  such  a  judgment,  but  to  hold  that 
because  the  defendant,  in  an  action  of  replevin,  does  not.  in 
his  answer,  not  only  confess  the  value  of  the  property  which 
the  plaintiff  has  fixed  upon  it,  but  allege  that  it  is  of  much 
greater  value,  that  he  is  bound  by  this  allegation  of  the 
plaintiff,  and  cannot  prove  the  actual  value  of  the  property 
taken  in  an  action  on  the  undertaking,  would  be  imposing 
upon  him  great  hardship  surely.  It  is  doubtful  if  the  de- 
fendant in  an  action  of  replevin  could  base  his  right  to  a 
judgment  for  the  value  of  the  property,  without  alleging 


596  LOMME  v.  SWEENEY.  [Aug.  T.; 

the  value  of  the  same  in  the  answer.  The  answer  of  a  de- 
fendant in  an  action  of  replevin  claiming  a  return  of  prop- 
erty, or  in  case  that  cannot  be  had,  a  judgment  in  the  alter- 
native for  its  value,  is  in  the  nature  of  a  cross  complaint, 
and  must  state  facts  sufficient  to  warrant  the  court  in  giving 
the  relief  demanded.  See  8  Cal. 

In  no  case  can  the  allegations  of  the  complaint  be  a  basis 
to  warrant  the  affirmative  relief  prayed  for  by  the  defend- 
ant. Of  course,  where  the  allegations  of  the  complaint 
have  been  denied  by  the  answer,  and  the  plaintiff  fails  to 
make  out  his  case,  the  judgment  of  the  court  would  be  for 
a  return  of  the  property. 

There  are  cases  to  the  effect,  that  where  the  court  awards 
a  judgment  of  nonsuit  the  defendant  is  not  entitled  to  an 
alternative  judgment  for  the  value  of  the  property.  If  the 
rule,  however,  contended  for  was  the  correct  one,  why  the 
value  of  the  property  alleged  in  the  complaint  would  not 
be  a  basis  for  an  alternative  judgment,  we  are  unable  to  per- 
ceive where  a  nonsuit  was  adjudged.  It  was  not  necessary 
that  the  plaintiff  should  have  made  any  demand  for  a  re- 
turn of  the  property.  The  only  object  of  making  a  demand 
is  to  notify  the  party  in  possession  of  the  property  of  the 
rights  and  claim  of  the  person  entitled  to  the  property.  Of 
this  the  principal  and  his  sureties  had  ample  notice  in  the 
action  of  replevin.  The  plaintiff  in  that  action  set  up  his 
rights,  and  claimed  a  return  of  the  property,  and  judgment 
of  return  was  awarded  him,  and  that  certainly  was  suffi- 
cient notice. 

For  these  reasons  the  judgment  of  the  court  is  affirmed 

Judgment  affirmed* 


1872.]  KINNA  v.  HORN.  697 


KINNA,  appellant,  v.  HORN  et  al.,  respondents. 

PBACTICB— verdict  —  conflicting  evidence.  The  verdict  of  a  jury  will  not  b« 
disturbed  if  there  is  a  conflict  in  the  evidence  upon  the  material  issues  in 
the  case. 

PBACTICB — new  trial — irregularities.  A  new  trial  will  not  be  granted  on  the 
ground  of  irregularities  in  the  conduct  of  a  party  and  his  attorney  during 
the  trial,  if  it  does  not  appear  that  the  verdict  was  affected  by  the  irregu- 
larities. 

Appeal  from  the  Third  District,  Lewis  and  Clarice  County. 

THIS  case  was  before  the  court  in  January,  1871,  ante, 
329.  The  second  trial  in  August,  1871,  resulted  in  a  ver- 
dict and  judgment  for  defendant,  Horn.  In  December, 
1871,  the  court,  WADE,  J.,  overruled  Kinna's  motion  for  a 
new  trial  and  Kinna  appealed. 

Kinna  filed  three  affidavits  in  support  of  the  ground  of 
irregularities  in  the  conduct  of  Horn  and  one  of  his  attor- 
neys during  the  trial.  They  set  forth  that  Horn  testified 
on  incompetent  subjects  in  defiance  of  the  rulings  of  the 
court;  that  Horn  testified  that  plaintiff  was  a  "liar"  and 
"thief,"  and  repeated  the  same  and  other  vile  epithets  in 
the  presence  and  hearing  of  the  jury  ;  that  Horn  made  use 
of  the  same  epithets  concerning  a  witness  for  plaintiff" ;  and 
that  Horn  was  excited  and  could  not  be  controlled  by  the 
court. 

They  also  set  forth  that  Horn  admitted  that  Marvin,  a 
witness  for  Kinna,  would  testify  to  the  facts  recited  in 
Kinna's  affidavit  for  a  continuance  ;  that  one  of  Horn's  at- 
torneys said  to  the  jury  in  his  argument  that  this  affidavit 
was  not  the  testimony  of  Marvin,  and  that  he  did  not  be- 
lieve that  Marvin  would  swear  to  what  was  contained  in  the 
affidavit  for  a  continuance  ;  and  that  one  of  Horn's  attor- 
neys said  in  the  hearing  and  presence  of  the  jury  that  cer- 
tain goods  had  not  been  delivered,  although  the  court  re- 
peatedly ruled  that  evidence  of  such  facts  was  incompetent 
and  irrelevant. 


598  KINNA  v.  HORN.  [Aug.  T.; 

W.  P.  SANDERS,  for  appellant. 

The  record  shows  that  appellant  maintained  his  case  by  a 
clear  preponderance  of  proof.  This  court  should  enforce 
the  law,  which  declares  those  facts  sufficiently  proven, 
which  are  thus  maintained.  The  verdict  was  against  the 
weight  of  the  evidence  and  should  be  set  aside. 

The  judgment  should  be  set  aside  on  account  of  the 
irregularities.  There  will  be  no  orderly  trials  if  such  per- 
formances as  appear  in  this  case  are  not  visited  with  pen- 
alties in  the  form  sought.  This  court  should  put  an  end  to 
"sharp"  efforts  to  win  cases  in  defiance  of  law.  No  coun- 
ter affidavits  were  filed  by  Horn,  and  the  only  proof  to  be 
heard  concerning  these  irregularities  is  in  the  affidavits  filed 
by  Kinna. 

The  testimony  shows  that  this  is  an  extraordinary  case, 
in  which  the  verdict  should  be  set  aside.  The  court  abdi- 
cates its  functions  if  it  permits  the  jury  to  act  like  an  irre- 
sponsible mob. 

SHOBER  &  LOWRY,  and  E.W.  TOOLE  and  B.  H.WILLIAMS, 

for  respondent  Horn. 

Appellate  courts  have  generally  held  that  they  would 
only  interfere  in  extraordinary  oases  with  the  decisions  of 
lower  courts  in  relation  to  the  weight  of  evidence.  The  ap- 
pellate court  will  not  disturb  a  judgment  or  verdict  where 
there  is  a  substantial  conflict  in  the  testimony  and  no  rule 
of  law  has  been  violated.  Ming  v.  Truett,  ante,  322 ;  Lu- 
beck  v.  Bullock,  24  Cal.  338  ;  Ellis  v.  Jeans,  26  id.  275  ; 
Wilkinson  v.  Parrott,  32  id.  102. 

N"o  instructions  appear  in  the  transcript,  and  the  only 
question  for  review  is  this :  Was  the  verdict  warranted  by 
the  evidence  \ 

KISTOWLES,  J.  This  cause  presents  but  two  points.  There 
\vas  a  full  traverse  of  the  complaint  of  plaintiffs  by  the 
answer  of  the  defendant  Horn.  Upon  the  material  issues 
in  the  case  there  was  a  conflict  of  testimony.  This  court 
has  repeatedly  held,  in  accordance  with  the  well-established 


1872.]  SANDERS  r.   FAKXVELL.  596 

precedents  of  other  courts,  that  where  there  is  a  conflict  in 
the  testimony  upon  the  material  points  in  issue  in  the  cause, 
it  cannot  disturb  the  verdict  of  a  jury.  That  it  cannot  in- 
vade the  province  of  the  court  below  and  of  the  jury,  and 
determine  the  credit  to  be  given  the  witnesses,  and  as  to 
whether  injustice  was  done. 

The  other  point  is  the  irregularities  occurring  during  the 
trial  complained  of  in  the  affidavits  filed  by  the  appellants. 
There  was  no  exception  duly  authenticated  taken  as  to  any 
action  of  the  court  below,  or  the  jury.  The  conduct  com- 
plained of  is  that  of  the  defendant  Horn  and  one  of  his 
attorneys.  It  does  not  appear  in  any  manner  that  these 
irregularities  affected  the  conduct  of  the  jury,  and  this  court 
cannot  presume  that  they  did.  The  granting  of  a  motion 
for  a  new  trial  rests  in  the  sound  legal  discretion  of  the 
court  that  tried  the  cause.  The  judge  of  that  court  was 
acquainted  with  the  facts  of  the  case  and  was  better  able  to 
determine  the  effect  of  the  irregularities  specified  in  the  affi- 
davits of  appellants  than  this  court.  And  in  the  overruling 
of  the  motion  for  a  new  trial  we  can  see  no  abuse  of  dis- 
cretion. We  find  no  other  points  presented  in  the  case  that 
demands  our  consideration. 

Judgment  of  the  court  below  affirmed. 

Judgment  affirmed. 


SANDERS,  appellant,  v.  FARWELL,  respondent. 

DISTRICT  COURT — jurisdiction.    The  district  courts  of  the  Territory,  created 

by  congress,  are  not  courts  of  the  United  States. 
DTSTKICT  COURT  —  equity —  citizenship  of  parties.    The  district  courts  of  the 

Territory,  exercising  the  jurisdiction  of  the  circuit  courts  of  the  United 

States,  hare  no  jurisdiction  of  a  suit  in  equity  between  citizens  of  the 

Territory. 
DISTRICT  conrr — equity — The  district  courts  of  the  United  States  have  no 

jurisdiction  to  determine  equity  causes. 
JURISDICTION' —  consent  of  parti's.     The  consent  of  pax-ties  cannot  coi»fer  upon 

a  court  jurisdiction,  which  is  not  granted  by  'aw. 
PRACTICE  —  demurrer — waiver  of  service.    The  filiiur  of  »  general  demurrer  tc 

a  bill  in  equity  is  a  waiver  of  any  irregularity  lu  the  sen  ice  of  the  eubp<Bua. 


600  SANDEBS  v.  FARWELL.  [Aug.  T. 

Appeal  from  the  First  District,  Madison  County. 

THE  demurrer  of  Farwell  to  the  bill  of  Sanders  was 
sustained  by  the  court,  MUEPHY,  J.,  in  April,  1872,  and 
Sanders  appealed.  The  facts  are  stated  in  the  opinion. 

E.  W.  TOOLE,  for  appellant. 

The  district  courts  have  jurisdiction  of  the  subject-matter. 
Respondent  appeared  by  demurrer,  and  that  gave  the  court 
jurisdiction  of  his  person. 

If  the  process  was  improper,  it  will  be  set  aside  or  quashed, 
and  new  and  proper  process  could  be  invoked.  If  the  ser- 
vice was  by  the  wrong  officer,  the  writ  could  have  been 
served  by  the  proper  officer  thereafter,  and  a  motion  limited 
to  setting  aside  the  service  would  have  been  proper.  But 
neither  defects  in  the  writ,  or  its  service,  can  be  raised  by 
demurrer,  for  a  demurrer  is  an  answer  in  law  to  the  bill. 

The  bill  of  complaint  was  proper,  the  process  was  regu- 
lar, the  service  was  by  the  proper  officer,  and  the  jurisdiction 
was  complete.  Rules  U.  S.  Sup.  Ct.  in  Eq.  7, 15, 96  ;  Organic 
Act,  §  9 ;  Orchard  v.  Hughes,  1  Wall.  (U.  S.)  76  ;  Dunphy 
v.  Kleinschmidt,  11  id.  610. 

H.  N.  BLAKE,  for  respondent. 

The  district  court,  sitting  as  a  district  court  of  the  United 
States,  has  no  jurisdiction  of  this  case.  The  two  jurisdic- 
tions are  distinct,  and  must  be  kept  separate.  In  certain 
cases,  the  legislative  assembly  has  conferred  jurisdiction  on 
these  courts ;  in  other  cases,  congress  has  regulated  the 
jurisdiction.  If  congress  has  not  given  the  district  courts 
of  the  United  States  jurisdiction  in  this  action,  the  court 
below  properly  sustained  the  demurrer.  Section  9  of 
the  "Judiciary  Act,"  1  U.  S.  Stat.  73,  and  other  acts,  regu- 
late this  jurisdiction.  With  the  exception  of  the  act  of  May 
15,  1820,  3  U.  S.  Stat.  592,  the  district  court  of  the  United 
States  has  no  equity  jurisdiction.  This  exception  is  inap- 
plicable to  this  case.  Conkling's  Treatise  (5th  ed.),  263,  §  4  ; 
Parker  v.  Judges,  12  Wheat.  561  ;  1  Abb.  U.  S.  Prac.  243, 
288  ;  Stacy  v.  Abbott,  1  Law  Times,  84. 


1872.  j  SANDERS  v.  FAR  WELL.  601 

The  circuit  courts  of  the  United  States  possess  jurisdiction 
of  suits  of  a  civil  nature  in  equity.  Appellant  did  not  com- 
mence his  action  in  this  court.  He  could  not  do  so,  because 
he  is  a  citizen  of  Montana  Territory.  A  citizen  of  a  Terri- 
tory cannot  maintain  a  suit  in  the  circuit  court  of  the  United 
States.  New  Orleans  v.  Winter,  I  Wheat.  91;  1  U.  S. 
Stat.  73,  §  11. 

The  jurisdiction  of  this  action  is  in  the  district  court, 
created  by  the  organic  act.  Acts  1865,  tit.  18. 

The  rules  of  the  supreme  court  of  the  United  States  relate 
to  the  practice  in  the  circuit  court,  in  which  appellant  can- 
not sue.  They  do  not  apply  to  this  case.  Clinton  v.  J3n- 
glebrecht,  13  Wall.  434. 

Respondent  did  not  make  a  general  appearance  by 
demurrer.  An  appearance,  for  the  purpose  of  denying  the 
jurisdiction  of  the  court,  could  not  be  held  to  be  an  admis- 
sion of  the  jurisdiction.  The  defect  is  not  thereby  waived. 
Wheeler  v.  Lampman,  14  Johns.  481  ;  Malcolm  v.  Rodgers, 
I  Cow.  1 ;  Williams  v.  Keller,  6  Nev.  145. 

KNOWLES,  J.  It  appears  by  the  bill  of  exceptions  pre- 
sented in  this  case,  that  the  appellant  filed  his  bill  for  the 
foreclosure  of  a  vendor's  lien  "  in  the  office  of  the  clerk  of 
the  district  court  of  the  United  States  in  and  for  the  first 
judicial  district  of  the  Territory  of  Montana."  That  after- 
ward, in  pursuance  of  the  prayer  of  the  bill,  a  writ  of  sub- 
poena, issued  out  of  said  court,  directed  to  the  respondent, 
Don  C.  Farwell,  commanding  him  to  personally  appear 
before  the  judge  of  the  district  court  of  the  United  States 
of  America  for  the  first  judicial  district  of  the  Territory  of 
Montana,  within  ten  days  to  answer  a  bill  of  complaint  ex- 
hibited against  him  in  said  court.  This  subpoena  was  duly 
served  and  returned  by  the  United  States  marshal  for  Mon- 
tana Territory.  The  respondent  appeared  in  this  action  and 
demurred  to  the  bill  on  the  two  following  grounds  : 

"First.  That  said  court  hath  not  jurisdiction  of  the  per- 
son of  the  defendant. 

"  Second.  That  the  said  court  hath  not  jurisdiction  of  the 
subject  of  the  action.'' 
VOL.  I.— 76 


602  SANDERS  v.  FAR  WELL.  [Aug.  T., 

In  the  first  place  there  are  no  such  courts  in  Montana 
Territory  as  "  the  district  court  of  the  United  States  in  and 
for  the  first  judicial  district  of  the  Territory  of  Montana." 
The  district  courts  for  the  Territory  have  conferred  upon 
them  the  same  jurisdiction  by  our  organic  act  as  is  exercised 
by  the  circuit  and  district  courts  of  the  United  States.  Yet 
this  does  not  make  them  courts  entitled  to  that  appellation. 

In  the  case  of  Peter  Clinton  et  til.  v.  Paul  Englebrecht 
et  aL,  the  supreme  court  of  the  United  States  says  :  "The 
judges  of  the  supreme  courts  of  the  Territory  are  appointed 
by  the  president  under  the  act  of  congress,  but  this  does 
not  make  the  courts  they  are  authorized  to  hold  courts  of 
the  United  States.  This  was  decided  long  since  in  the 
American  Insurance  Company  v.  Carter,  1  Pet.  546,  and 
in  the  later  case  of  Benner  v.  Porter,  9  How.  235.  There 
is  nothing  in  the  constitution  which  would  prevent  congress 
from  conferring  the  jurisdiction  which  they  exercise  if  the 
judges  were  elected  by  the  people  of  the  Territory  and 
commissioned  by  the  governor.  They  might  be  clothed  by 
the  same  authority  to  decide  all  cases  arising  under  the 
constitution  and  laws  of  the  United  States  subject  to  the 
same  revision." 

Again  :  "There  is  no  supreme  court  of  the  United  States, 
in  the  sense  of  the  constitution,  in  the  Territory  of  Utah." 

This  decision  no  longer  leaves  it  an  open  question  as  to 
whether  this  bill  was  addressed  to  any  court  having  an  ex- 
istence in  this  Territory.  In  the  next  place,  allowing  that 
the  intention  of  the  appellant  was  to  appeal  to  the  jurisdic- 
tion conferred  upon  the  district  courts  of  the  Territory  co- 
inciding with  that  exercised  by  the  district  and  circuit  courts 
of  the  United  States,  the  question  presented  is,  was  the 
demurrer  well  taken  ? 

It  will  be  seen  by  reference  to  Brightley's  Digest,  126- 
130,  that  the  circuit  court  of  the  United  States  has  jurisdic- 
tion "of  all  suits  of  a  civil  nature  at  common  law  or  in 
equity,  when  the  matter  in  dispute  exceeds,  exclusive  of 
costs,  the  sum  or  value  of  five  hundred  dollars,  and  the 
United  States  are  plaintiffs  or  petitioners,  or  an  alien  is  a 


1872.]  SANDERS  v.  FARWELL.  603 

party,  or  the  suit  is  between  a  citizen  of  the  State  where  the 
suit  is  brought  and  a  citizen  of  another  State." 

Also,  that  it  has  jurisdiction  of  certain  cases  in  law  or 
equity  arising  under  the  revenue  laws  of  the  United  States. 
The  bill  shows  upon  its  face  that  both  appellant  and  re- 
spondent are  citizens  of  Montana  Territory,  and  the  action 
is  to  procure  a  vendor's  lien.  This  shows  conclusively  that 
the  district  court,  exercising  the  jurisdiction  of  the  circuit 
court  of  the  United  States,  would  have  no  jurisdiction  of 
the  action.  It  does  not  come  within  the  enumerated  class 
of  actions  over  which  that  court,  by  law,  is  authorized  to 
exercise  jurisdiction. 

By  a  reference  to  pages  230.  231  of  Brightley's  Digest, 
it  will  be  seen  what  jurisdiction  congress  has  conferred  upon 
the  district  courts  of  the  United  States.  The  power  to  de- 
termine actions  in  equity  is  not  conferred.  Neither  the  cir- 
cuit or  district  courts  of  the  United  States  have  any  juris- 
diction but  what  is  conferred  upon  them  by  congress.  This 
is  an  action  in  equity.  The  appearance  of  the  defendant 
did  not  confer  jurisdiction  upon  the  court.  The  right  to 
determine  the  action  presented  in  the  bill,  if  not  conferred 
by  law,  could  not  be  conferred  upon  the  court  by  consent  of 
parties.  Hence,  we  hold  that  the  demurrer  was  well  taken, 
and  the  ruling  of  the  court  below  should  be  sustained.  If 
this  could  be  treated  as  an  action  in  the  district  court  for 
the  Territory,  exercising  its  powers  as  a  territorial  court, 
there  is  no  doubt  but  that  the  appearance  of  the  defendant 
in  the  action  and  the  filing  of  a  general  demurrer  to  the  bill 
would  be  a  waiver  of  the  irregularity  of  the  service  of  the 
subpoena  by  the  United  States  marshal.  We  do  not  think, 
however,  that  this  should  be  so  treated.  The  court  in  which 
the  bill  purports  to  be  filed,  the  prayer  for  a  subpoena  and 
the  service  of  the  same  by  the  United  States  marshal  for  the 
Territory,  precluded  the  idea  that  there  was  any  intention, 
i  »ii  tlie  part  of  the  appellant,  to  commence  his  action  in  this 
court,  and  appeal  to  what  is  commonly  termed  its  territorial 
jurisdiction. 

For  these  reasons  the  judgment  of  the  court  below  is 

Affirmed. 


(504  FIBST  NAT.  BANK  OF  HELENA  ».  How.    [Aug.  T.; 


FIRST  NATIONAL  BANK  OF  HELENA,  respondent,  t>.  How 
et  al.,  appellants. 

PROMISSORY  NOTE  —  consideration  —fraud  —  defense.  Fraud  that  impeaches 
the  consideration  of  a  promissory  note  constitutes  a  defense  to  an  action 
at  law  on  the  note. 

PROMISSORY  NOTE — fraud  of  maker  and  payee  —  vendor  and  vendee  —  defense. 
A  party  who  buys  and  receives  from  the  possessor  quartz-mill  machinery, 
the  title  to  which  is  in  litigation,  and  makes  his  promissory  note  in  payment 
of  the  same,  commits  a  fraud  on  the  vendor  by  delivering  the  possession 
of  the  property  and  executing  a  conveyance  of  his  right  thereto  to  another 
claiming  the  same,  upon  a  demand  without  any  legal  compulsion,  and  can- 
not afterward  plead  as  a  defense,  in  an  action  brought  on  the  note,  the  fraud- 
ulent conduct  of  the  vendor  in  selling  the  property. 

PROMISSORY  NOTE — failure  of  consideration  —  delivery  of  property.  In  an  ac- 
tion to  recover  a  promissory  note,  the  maker  does  not  show  a  failure  of  con- 
sideration by  alleging  that  the  payee  had  no  title  to  the  property,  in  pay- 
ment of  which  it  was  made,  if  it  appears  that  the  maker  had  delivered  to  a 
claimant,  without  any  legal  necessity,  the  property  which  he  had  bought 
and  received  from  the  payee. 

PROMISSORY  NOTE — pleading  —  allegation  of  fraud.  In  an  action  on  a  promis- 
sory note  the  allegation  that  a  suit  was  corruptly  and  fraudulently  dis- 
missed, without  setting  forth  the  facts  constituting  the  fraud,  is  imma- 
terial. 

PLEADING — filing  amended  answer — discretion.  It  is  not  an  abuse  of  legal 
discretion  in  the  court  below  to  refuse  to  allow  a  defendant  to  file  a  second 
amended  answer,  if  the  affidavits  do  n«t  show  what  the  defense  ia,  and  whj 
it  was  not  made  before. 

Appeal  from  the  First  District,  Madison  County. 

IN  April,  1872,  the  court,  MTTKPHY,  J..  sustained  the  mo- 
tion of  plaintiff  for  judgment  on  the  pleading,  and  refused 
to  allow  the  defendants,  How  et  al.,  to  file  another  amended 
answer. 

The  answer  alleged  that  the  only  consideration  of  the  note 
sued  on  was  the  sale  and  delivery  to  How  of  certain  ma- 
chinery ;  that  plaintiff,  at  the  time  of  the  execution  and 
delivery  of  the  note,  falsely  and  fraudulently  stated  and 
represented  to  How  that  the  plaintiff  was  the  legal  and 
rightful  owner  of  the  property,  and  had  the  full  right  to 
sell  the  same ;  that  How,  relying  on  these  representations, 
executed  the  note  sued  on  ;  that  the  only  title  of  plaintiff  t.<: 


1872.]        FIRST  NAT.  BANK  OF  HELENA  v.  How.  605 

the  property,  at  the  time  of  the  execution  of  the  note,  was 
derived  by  a  pretended  sale  and  delivery  of  the  property  to 
plaintiff  by  Cole  Sanders,  who  had  possession  of  the  same 
as  agent  of  the  "Cole  Sanders  Mining  Company;' 
that  said  Sanders  had  no  right  to  so  sell  and  deliver  the 
property,  which  belonged  solely  to  the  company,  and  was 
employed  by  the  company  as  its  agent  in  putting  up  said 
machinery  and  using  the  same  in  quartz  milling ;  that 
plaintiff  well  knew  the  foregoing  facts  ;  that  Sanders  became 
indebted  individually  to  plaintiff,  for  purposes  not  embraced 
within  his  employment  as  such  agent ;  that  plaintiff  fraud- 
ulently colluded  to  defraud  the  said  company  of  said  prop- 
erty, and  that  said  Sanders,  with  fraudulent  design,  and 
without  any  power  or  authority,  sold  and  delivered  said 
property  to  plaintiff  in  consideration  of  said  individual  in- 
debtedness ;  that  plaintiff  commenced  an  action  against  said 
company  to  procure  the  title  of  the  company  to  the  prop- 
erty, and  agreed  to  prosecute  the  same  to  judgment ;  that 
How  relied  upon  such  prosecution,  and  that  said  note  would 
not  have  been  made  if  plaintiff  had  not  made  this  induce- 
ment ;  that  plaintiff,  after  the  execution  of  the  note,  wrong- 
fully and  fraudulently  dismissed  said  action,  and  has  failed 
to  procure  any  adjudication  of  the  title  to  said  property,  as 
against  said  company  ;  that  plaintiff  procured  the  execu- 
tion of  said  note  to  defraud  the  defendants  of  the  moneys 
mentioned  in  the  note  ;  "  and  defendants  aver  that  the  said 
Cole  Sanders  Mining  Company,  by  virtue  of  their  said 
superior  title,  has  demanded  and  claimed  possession  of  said 
property  from  defendant  How." 

The  answer  contained  a  counter-claim,  and  demanded 
judgment  against  plaintiff  for  $8,000  damages  sustained  by 
defendant  How  in  the  transportation  and  erection  of  said 
property  for  the  purpose  of  crushing  quartz. 

The  other  facts  appear  in  the  opinion. 

W.  P.  SANDERS  and  S.  WORD,  for  appellants. 
The  court  below  seems  to  have  thought  that  the  answer 
stated  facts  that  constituted  a  defense  in  equity,  but  not  in 


606  FIRST  NAT.  BANK  OF  HELENA  a.  How.    'Aug.  T.> 

law.  The  question  in  this  case  is,  whether  the  law  will  en- 
force a  contract  procured  by  fraud,  or  compel  the  specific 
performance  of  an  executory  agreement  when  the  consid- 
eration has  wholly  failed.  Chitty  on  Cont.  748,  tit  "  Con- 
tracts void  on  the  ground  of  fraud." 

The  appellant  How,  who  had  no  title,  quit-claimed  to  the 
party  having  the  superior  title.  It  is  contended  that  this 
is  an  admission,  which  does  away  with  the  force  of  the 
allegations  as  to  fraud  in  procuring  the  note,  and  failure  of 
consideration.  There  should  be  no  confusion  here.  Sup- 
pose the  plaintiff  had  come  in  and  confessed  the  fraud  and 
failure  of  consideration  set  forth  in  the  answer,  and  had 
alleged,  by  way  of  avoidance,  that  How  had  yielded  to  the 
superior  title  and  quit-claimed  his  interest  as  stated  in  the 
answer,  would  any  court  hold  that  the  matter  confessed 
had  been  avoided  ?  Certainly  not.  The  fact  that  this  alle- 
gation is  made  by  the  defendants  in  the  answer  is  of  no 
more  force  than  if  made  as  reply  by  plaintiff. 

No  interest  should  have  been  allowed  on  the  note.  Re- 
spondents "charged"  interest  at  more  than  ten  per  cent 
per  annum.  Such  charging  results  in  a  forfeiture  of  all 
interest  due.  Act  June  30,  1864,  §  30 ;  2  Bright.  Dig.  64 ; 
National  E.  B.  Columbus  v.  Moore,  I  Law  T.  Bank,  74. 

E.  W.  &  J.  K.  TOOLE,  for  respondent. 

The  answer  shows  that  the  defense,  if  any,  is  equitable. 
Appellants'  remedy  should  be  by  a  bill  asking  a  stay  of 
proceedings  in  a  court  of  chancery. 

Appellants  had  no  right  to  dispose  of  the  property  to  the 
Cole  Sanders  Mining  Company.  Appellants  should  have 
returned  property  to  respondent  upon  discovery  of  the 
alleged  fraud.  The  title  of  respondent  has  been  vested  in 
the  Cole  Sanders  Mining  Company  by  the  conveyance  of 
How.  Respondent  must  look  to  appellants  and  the  note 
sued  on,  and  has  no  other  remedy. 

The  court  properly  denied  the  application  of  appellants 
to  iilc  an  amended  answer.  The  answer  on  file  was  a  second 
amended  answer.  The  affidavits  do  not  show  what  amend 


1872.]        FIRST  NAT.  BANK  OF  HELENA  v.  How.  607 

ments  are  sought  to  be  made.  Appellants  must  show  that 
they  would  obviate  the  objections  to  the  answer  on  file  by 
their  proposed  amendments.  Appellants  must  also  show- 
that  there  was  a  gross  abuse  of  discretion  by  the  court  be- 
low in  refusing  to  permit  them  to  amend  their  answer.  How 
many  times  has  a  party  a  right  to  amend  ?  Can  a  party 
gamble  for  decisions  of  the  court,  and  continue  to  ask  to 
amend  if  the  rulings  are  adverse  to  him  ? 

KNOWLES,  J.  The  only  points  presented  in  this  case 
are  the  sufficiency  of  the  answer  of  the  defendants,  and  the 
refusal  of  the  court  below  to  permit  the  defendants  to  file 
an  additional  amended  answer. 

The  defendants  admit  the  execution  of  the  note  sued,  and 
deny  that  John  S.  Atchison,  cashier,  assigned,  for  a  valua- 
ble consideration,  this  note  to  plaintiff,  or  delivered  the  same 
to  it.  This  denial  would,  perhaps,  be  sufficient  to  raise  an 
issue  as  to  whether  the  assignment  was  for  a  valuable  con- 
sideration. The  defendants,  however,  in  another  part  of 
their  answer,  aver  that  they  "  executed  and  delivered  to  the 
said  John  S.  Atchison,  as  cashier  arid  agent  of  plaintiff, 
and  for  the  sole  use  and  benefit  of  plaintiff,  the  said  promis- 
sory note  sued  on."  Admitting  this  averment  to  be  true, 
and  ill*-1  plaintiff  is  the  rightful  owner  of  the  note,  and  under 
our  statute  the  proper  party  plaintiff,  although  the  assign- 
ment of  the  note  to  plaintiff  may  not  have  been  for  a  valua- 
ble consideration. 

\Ve  come  now  to  the  consideration  of  whether  the  answer 
s  >is  up  other  i'acts  which  constitute  a  defense  to  the  action 
on  til--  said  note. 

Both  plaintiff  and  defendants  seem  disposed  to  treat,  in 
their  arguments,  the  allegations  of  the  answer  as  sotting  up 
the  defense  of  fraud.  We  do  not  feel  disposed  to  enter  into 
the  discussion  as  to  whether  this  defense  is  an  equitable  one 
or  not,  and,  therefore,  inadmissible,  under  our  organic  act, 
to  be  interposed  to  this  action  on  a  promissory  note.  Un- 
doubtedly fraud  can  be  sot  up  as  a  defense  to  an  action  at  law 
on  a  promissory  note,  that  is,  any  fraud  that  would  impeach 


608  FIRST  N  *.T.  BANK  OF  HELENA  v.  How.   [Aug.  T., 

the  consideration  for  which  the  note  was  given.  The  fraud 
presented  in  this  case  by  the  answer  of  the  defendants  is, 
that  the  plaintiff  sold  the  defendant  How  certain  quartz 
mill  machinery,  for  which,  as  a  security  for  the  payment  of 
the  consideration,  this  note  was  given,  but  that  plaintiff  had 
no  title  to  said  property.  That  the  same  was  owned  by  a 
corporation  known  as  the  Cole  Sanders  Mining  Company, 
incorporated  under  the  laws  of  the  State  of  Missouri.  That 
plaintiff  purchased  this  property  from  Cole  Sanders,  an 
agent  of  the  said  corporation,  and  that  he  had  no  authority 
to  sell  the  same.  That  at  the  time  of  the  sale  plaintiff  knew 
that  it  had  no  title  to  said  property,  and  that  the  said  Cole 
Sanders  had  no  authority  to  sell  the  same. 

The  answer  shows  that  plaintiff  agreed  to  prosecute  an 
action  to  declare  the  title  to  the  said  property  to  be  in  plain- 
tiff, and  not  in  said  corporation,  and  that  a  suit  was  pending 
for  that  purpose  when  plaintiff  sold  defendant  How  this 
property,  but  that  plaintiff,  disregarding  this  agreement, 
fraudulently  dismissed  said  action. 

When  a  party  sets  up  fraud,  he  must  come  into  court 
with  clean  hands  and  show  that  he  is  entitled  to  avail  him- 
self of  the  fraud  alleged.  As  we  have  seen,  the  defendants 
show  by  their  answer  that  they  had  been  apprised  that  there 
was  some  dispute  about  this  property,  that  an  action  was 
pending,  concerning  the  same,  against  the  Cole  Sandera 
Mining  Company. 

The  defendants  aver  "  that  the  Cole  Sanders  Mining  Com- 
pany, by  virtue  of  their  said  superior  title,  has  demanded 
and  claimed  possession  of  said  property  from  defendant 
How,  and  that  said  defendant  How  has  released,  relin- 
quished and  conveyed  to  said  corporation  all  his  title  and 
possession  and  right  of  possession  of  the  said  property  de- 
rived under  and  by  virtue  of  the  said  sale." 

This  was  not  a  proper  course  for  the  defendant  How  to  have 
pursued  on  a  simple  demand  from  the  Cole  Sanders  Mining 
Company,  for  said  property,  although  that  company  may 
have  had  the  best  title  to  the  same.  The  proper  action  on  the 
part  of  the  defendant  How  would  have  been  to  have  delivered 


1872.]        FISST  JS'AT.  BANK  OF  HELENA  «.  How. 

or  offered  in  good  faith  to  deliver  back  the  propel ty  to  the 
plaintiff,  as  soon  as  he  discovered  that  the  plaintiff  had  no 
title  to  said  property,  and  that  a  fraud  had  been  committed 
upon  him,  unless  in  some  manner  he  was  prevented  from  so 
doing.  He  had  no  right  to  pursue  such  a  course  as  to  place 
the  plaintiff  in  a  more  unfavorable  position  in  regard  to  the 
property  than  he  would  have  been  had  he  never  sold  the 
same  to  him.  The  mere  demand  of  the  Cole  Sanders  Min- 
ing Company  was  not  sufficient  to  have  prevented  the  de 
fendant  How  from  delivering  or  offering  to  deliver  the  pos- 
session of  the  property  back  to  plaintiff,  much  less  was  it 
sufficient  to  compel  the  said  How  to  not  only  deliver  the 
possession  of  said  property,  but  to  make  a  conveyance  of  the 
same  to  the  said  company  of  his  title  and  interest.  Posses- 
sion of  property  is  of  some  value.  The  possessor  of  prop- 
erty may  never  be  compelled  to  deliver  the  same  to  the  one 
holding  the  paramount  title.  The  conduct  on  the  part  of 
How  we  hold  was  such  as  will  preclude  him  and  his  sure- 
ties from  coming  in  and  setting  up  the  fraud  complained  of. 
The  said  How  has  committed  a  wrong  against  the  plaintiff 
by  his  conduct  in  the  premises.  It  may  be  urged  that,  as 
the  answer  must  be  taken  as  true,  there  was  no  wrong  in  the 
action  of  the  defendant  How,  because  the  plaintiff  had  no 
title  to  the  property  as  appears  by  the  answer.  The  reply 
to  this  is  that  the  defendant  How,  having  received  the  pos- 
session of  this  property  from  the  plaintiff,  had  no  right  un- 
less by  a  legal  compulsion  to  deliver  the  property  to  the 
other  contestant  therefor.  That  although  the  plaintiff  may 
have  had  no  title  to  the  property,  it  had  the  possession 
thereof  and  How  had  no  right  to  act  in  such  a  manner  as  to 
deprive  it  of  regaining  this.  Such  a  proceeding  as  that  of 
the  defendant  How  would  be  but  a  short  way  of  taking 
property  from  the  possession  of  one  claimant  and  deliver- 
ing it  to  another,  and  then  force  the  one  who  had  been  de- 
prived of  the  possession  of  the  same  and  the  use  and  enjoy- 
ment thereof  to  litigate  the  title  to  the  property  on  an  action 
on  the  promissory  note  given  as  a  security  for  the  payment 
^f  the  consideration  therefor.  No  court  would  be  war- 
VOL.  I. —77 


610  FIRST  NAT.  BANK  OF  HELENA  v.  How.    [Aug.  T., 

ranted  in  supporting  such  a  proceeding.  It  is  inconsistent 
with  fair  dealing  on  the  part  of  the  defendant.  He  must 
have  his  hands  clean  to  entitle  him  to  set  up  the  fraud  com- 
plained of. 

It  does  not  appear  how  the  defendants  were  damaged  by 
a  failure  to  prosecute  the  suit  to  test  the  title  to  the  prop- 
erty between  the  plaintiff  and  the  Cole  Sanders  Mining 
Company.  The  dismissal  of  the  suit  may  have  been  the 
natural  result  of  the  plaintiff  parting  with  the  possession 
of  the  property  and  its  title  to  the  same.  The  mere  allega- 
tion that  such  dismissal  was  corruptly  and  fraudulently 
done  amounts  to  nothing  without  showing  the  fraud.  The 
facts  that  constitute  fraud  must  be  set  forth. 

It  is  claimed  in  the  argument  of  appellants  that  the  alle- 
gations of  the  answer  amount  to  the  setting  forth  of  a  fail- 
ure of  consideration.  We  should  be  more  inclined  to  treat 
the  answer  as  setting  forth  such  a  defense  did  it  not  contain 
the  allegations  that  the  plaintiff  knew  it  had  no  title  to  said 
property  at  the  time  of  the  sale  of  the  same,  that  it  pur- 
chased the  same  from  an  agent  of  the  Cole  Sanders  Mining 
Company,  who  had  no  authority  to  sell  the  same,  which 
the  plaintiff  well  knew. 

Treating  this  answer,  however,  as  an  attempt  to  set  up 
failure  of  consideration,  namely,  failure  of  title  of  the 
property  for  which  the  note  sued  on  was  given  in  considera- 
tion, and  does  the  answer  present  a  complete  defense  of  this 
kind « 

It  does  not  appear  that,  by  any  legal  action,  the  plaintiff 
had  been  adjudged  to  have  no  legal  title.  It  does  not  ap- 
pear that  the  Cole  Sanders  Mining'  Company  had  obtained 
the  possession  of  said  property  through  any  legal  process. 
All  that  does  appear  is,  thai  the  said  mining  company  de- 
manded possession  of  one  of  the  defendants,  John  How,  of 
said  property,  and  that  in  pursuance  of  this  demand  he  not 
only  delivered  possession  thereof  to  said  company,  but  he 
conveyed  to  it  all  his  right,  title  and  interest  thereto, 
hold  that  this  does  riot  show  a,  failure  of  consideration.  To 
warrant  a  party  in  delivering  possession  of  propertv  •  ,  a 


1872.]        FIRST  NAT.  BANK  OF  HELENA  v.  How.  611 

claimant  thereof,  that  he  has  received  possession  of  from 
another  by  virtue  of  a  sale,  there  must  be  some  legal 
necessity  for  him  to  do  so.  That  he  cannot  act  thus  on  a 
simple  demand  and  then  claim  that  the  title  has  failed.  It 
has  frequently  been  held,  in  cases  of  the  sale  of  lands,  that 
the  defendant,  in  an  action  on  the  consideration  therefor, 
cannot  set  up  a  failure  of  title  as  a  defense  to  the  action 
without  showing  an  eviction.  Personal  property  comes 
under  the  same  rule  as  real  estate  when  a  defendant  seeks 
to  avail  himself  of  a  failure  of  title.  We  do  not  hold,  how- 
ever, that  it  is  actually  necessary  for  a  defendant,  in  such 
an  action,  to  show  an  eviction,  but  we  do  hold  that  the  title 
must  have  failed  and  that  possession  can  no  longer  be  main- 
tained, or  that  he  has  delivered,  or  offered  to  deliver,  the 
property  back  to  his  vendor,  or  show  some  good  reason  for 
not  doing  so.  Although  the  defendants  may  have  been  ap- 
prised of  an  outstanding  title,  and  may  have  believed  that 
this  was  the  paramount  title,  and,  in  fact,  it  may  have  been, 
they  had  no  right  to  deliver  possession  of  the  property  to 
this  claimant  without  some  legal  necessity  for  it.  No  such 
necessity  existed  at  the  time  and  there  may  never  have  been 
such  a  necessity. 

For  these  reasons  we  think  the  answer  of  the  defendants 
did  not  state  facts  sufficient  to  constitute  a  defense,  and  that 
the  plaintiff  was  entitled  to  a  judgment  on  the  pleadings. 

The  refusal  of  the  court  below  to  permit  the  defendant  to 
lile  an  amended  answer  is  assigned  as  error. 

The  refusal  to  allo\v  a  party  to  amend  his  pleadings  rests 
in  the  sound  legal  discretion  of  the  court  to  whom  the  ap- 
plication is  made,  and  this  court  can  only  review  that  ruling 
when  it  appears  that  there  has  been  some  abuse  of  that  dis- 
cretion. It  appears  that  the  defendants  had  obtained  per- 
mission before  to  amend  their  answer,  and  that  the  answer 
in  this  cause  was  filed  in  pursuance  to  that  permission. 

The  attorneys  for  the  defendants  make  affidavit  on  their 
second  application  to  amend  their  answer,  that  the  defend- 
ants, in  their  judgment,  have  a  good  defense  to  the  action, 
but  these  affidavits  do  not  show  what  that  defense  is.  and 


612  COLLIER  v.  FIELD.  [Aug.  T., 

why  it  was  not  interposed  before,  although  from  their  affi- 
davits it  would  appear  that  such  defense  must  have  been 
within  their  knowledge. 

Under  such  circumstances  we  can  see  no  abuse  of  discre- 
tion in  refusing  to  allow  this  second  amendment  of  defend- 
ants to  their  answer. 

For  these  reasons  the  judgment  of  the  court  below  is 

Affirmed. 


COLLIER,  respondent,  v.  FIELD  et  al.,  appellants. 

RELEASE  —  consideration  —  seal.  A  release  that  is  executed  for  a  consideration 
and  does  not  affect  real  estate,  is  valid  without  a  seal. 

RELEASE  — judgment  —  mortgage  —  release  of  one  obligor.  The  written  release  for 
a  valuable  consideration  of  one  of  the  joint  and  several  makers  of  a  promis- 
sory note  from  all  liability  on  the  judgment  entered  in  the  district  court 
thereon,  and  the  mortgage  securing  the  payment  of  the  note,  satisfies  the 
judgment  and  releases  all  the  judgment  debtors  and  mortgagors. 

RELEASE  —  repugnant  proviso  void.  The  proviso  in  a  release  of  one  judgment 
debtor,  which  states  that  the  liability  of  the  other  judgment  debtors  shall 
not  be  affected  thereby,  is  repugnant  to  the  release  and  void. 

SALE  UNDER  EXECUTION  SET  ASIDE — fraud.  The  sale  of  property  under  an 
execution  to  satisfy  a  judgment  for  the  foreclosure  of  a  mortgage,  after  the 
judgment  creditor  has  released  one-half  of  the  property  from  the  mortgage 
and  judgment,  and  received  one-half  of  the  judgment,  is  fraudulent  and 
must  be  set  aside  by  the  court. 

CASE  AFFIRMED  —  interest.  The  case  of  Davis  v.  Hendrie,  ante,  495,  holding 
that  parties  could  contract  for  a  higher  rate  of  interest  than  ten  per  centum 
per  annum  after  the  maturity  of  the  note,  affirmed. 

PROMISSORY  NOTE  —  interest  until  paid.  A  promissory  note,  in  which  the 
maker  agrees  to  pay  a  certain  sum,  "on  or  before  "  a  certain  day,  "  with  in- 
terest at  the  rate  of  three  per  cent  per  mouth  until  paid,"  does  not  provide 
for  the  rate  of  interest  after  its  maturity  on  that  day,  and  the  holder  can 
then  collect,  under  the  statute,  interest  at  the  rate  of  ten  per  centum  per 
annum. 

Appeal  from  the  First  District,  Jefferson  County. 

IN  May,  1872,  the  court,  MURPHY,  J.,  overruled  the 
motion  of  Ervin  and  Metcalf  to  set  aside  the  sale  of  certain 
property  by  the  sheriff  under  execution,  and  they  appealed. 
Thp  facts  are  stated  in  the  opinion. 


1872.]  COLLIER  v.  FIELD.  613 

PAGE  &  GOLEM  AN,  for  appellants. 

Where  two  or  more  debtors  are  jointly  and  severally 
bound,  a  release  of  one  is  a  release  of  all.  Story  on  Prom. 
Notes,  §425;  Byles  on  Bills,  §232;  Brightly' s  Fed.  Dig. 
"  Release  ;"  Nicholson  v.  Remlle,  4  Ad.  &  El.  675  ;  Hoffman 
v.  Dunlap,  6  Cal.  183 ;  Tuckerman  v.  Newhall,  17  Mass. 
581. 

Such  a  release  need  not  be  under  seal.  The  rule  of  the 
ancient  courts  in  this  respect  has  been  changed.  1  Pars. 
Notes  &  Bills,  248  ;  Benjamin  v.  McConnell,  4  Gilm.  (111.) 
536.  Where  a  consideration  is  expressed,  or  proved  to  have 
passed,  a  seal  is  immaterial.  Ayer  v.  Ashmead,  31  Conn. 
447 ;  Mllliken  v.  Brown,  1  Rawle,  391. 

A  general  release  can  be  restrained  by  the  recital,  which 
refers  to  an  enumeration  of  the  debts  extinguished,  never 
to  the  parties  affected  thereby.  A  proviso  in  a  release  that 
other  parties  shall  not  take  advantage  of  it  is  void.  Bacon's 
Abr.,  Release,  "Gr;"  Owen  v.  Homan,  20  L.  J.  ;  Wig  gin 
v.  Tudor,  23  Pick.  434 ;  Rice  v.  Webster,  18  111.  331. 

The  release  extinguishes  the  obligation,  and  there  must 
be  a  new  and  separate  promise  to  pay  to  bind  the  co-obligors. 
Stearns  v.  Tappin,  5  Duer,  244 ;  Hoosac  v.  Rogers,  8  Paige, 
229. 

Equity  will  not  relieve  except  where  there  is  fraud  or  un- 
fair practices.  Joy  v.  Warz,  2  Wash.  C.  C.  266. 

The  release  in  this  case  cannot  be  construed  a  covenant 
not  to  sue.  No  right  to  bring  a  suit  against  all  the  debtors 
is  reserved  in  the  release.  Bronson  v.  FitzliugTi,  1  Hill,  185  ; 
Ayer  v.  AsTimead,  31  Conn.  447. 

Parol  testimony  is  inadmissible  to  contradict  or  vary  the 
terms  of  a  release  under  seal.  Bronson  v.  FitzliugTi,  1 
Hill,  185. 

In  tliis  case  the  releases  are  under  seal,  and  the  whole 
debt  was  extinguished  thereby. 

The  sale  should  have  been  set  aside  on  other  grounds. 
The  execution  was  for  the  amount  of  the  original  judgment. 
whereas  the  release  acknowledged  a  payment  of  $1*500 
The  sheriff  was  not  an  oflioer  of  the  chancery  court,  and 


614  COLLIEB  v.  FIELD.  [Aug.  T., 

had  no  authority  to  make  the  sale.    The  sheriff  advertised 
for  sale  the  property  of  Field,  which  had  been  released. 

GL  G-.  SYMES,  A.  GK  P.  GEORGE  and  W.  F.  SANDERS,  for 
respondent. 

There  is  no  appeal  from  the  judgment.  Setting  aside  a 
sale  is  in  the  discretion  of  the  court,  and  will  not  be  done 
unless  the  substantial  rights  of  the  parties  have  been  affected. 
The  sale  can  only  be  set  aside  for  errors  appearing  in  the 
record.  The  evidence  heard  in  the  court  below  was  not 
saved  by  a  bill  of  exceptions. 

A  sale  of  real  estate,  after  the  report  of  sale  has  been  re- 
turned and  certificate  of  sale  delivered,  cannot  be  set  aside 
except  by  bill  in  equity.  Mere  irregularities  and  errors  in 
the  proceedings  of  the  court  will  not  invalidate  a  sale.  1 
Dan.  Ch.  168. 

The  release  only  released  Field's  portion  of  the  debt ;  it 
being  a  several  liability,  the  whole  debt  is  not  released. 
Acts  1865,  454 ;  Story  on  Prom.  Notes,  §§  445,  550. 

Our  statute  makes  this  a  several  contract.  The  release  of 
one  on  a  joint  and  several  contract  does  not  release  all,  where 
the  contrary  is  expressly  stipulated. 

This  court  cannot  reverse  the  decision  of  the  court  below, 
without  hearing  the  evidence  on  which  the  court  below  based 
its  decision.  Injustice  would  be  done  by  such  a  ruling. 

WADE,  C.  J.  This  was  an  action  to  foreclose  a  mortgage, 
upon  certain  mining  property,  situate  in  Jefferson  county, 
given  by  defendants  to  plaintiff,  to  secure  the  payment  of 
two  certain  promissory  notes,  as  follows  : 

"SPRINGVILLE,  July  19,  1869. 

"On  or  before  the  first  day  of  June,  1870,  for  value 
received,  we  jointly  or  severally  promise  to  pay  C.  T. 
Collier,  or  order,  the  sum  of  four  hundred  dollars,  in  good 
bankable  gold  dust,  at  eighteen  dollars  per  ounce,  with 
interest  at  the  rate  of  three  per  cent  per  month  until  paid. 

"K.  B.  FIELD, 
"WM.  M.  ERVIN, 
•'W.  H.   METCALF." 


1872.]  COLLIER  v.  FIELD.  615 

"  SPRINGVILLE,  July  19,  1869. 

"On  or  before  the  first  day  of  August,  1870,  for  value 
received,  we  jointly  or  severally  promise  to  pay  C.  T. 
Collier,  or  order,  the  sum  of  fifteen  hundred  dollars,  in 
good  bankable  gold  dust,  at  eighteen  dollars  per  ounce, 
with  interest  at  the  rate  of  three  per  cent  per  month  until 
paid. 

"R.  B.  FIELD, 
"WM.  M.  ERVIN, 
"W.  H.  METCALF." 

The  defendants  were  duly  notified  of  the  pendency  of  the 
action,  and  made  default,  whereupon  at  the  October  term 
of  the  district  court  for  said  county,  to  wit,  on  the  12th  day 
of  October,  1871,  a  decree  was  rendered  in  the  action  in  the 
usual  form,  ascertaining  the  amount  due  from  defendants 
to  the  plaintiff,  on  said  notes,  to  wit,  the  sum  of  $3,025.70, 
and,  in  default  of  payment,  ordering  a  sale  of  the  mortgaged 
premises. 

Afterward,  on  the  8th  day  of  November,  1871,  the  plaintiff 
filed  with  the  clerk  of  said  court  a  release  of  defendant  R. 
B.  Field,  as  follows. 

•'I  do  hereby  certify  that  the  sum  of  $1, 528. 30  has  been 
paid  me  by  R.  B.  Field,  and  for  which  sum  I  do  release  the 
said  Field  from  all  liability  on  the  judgment  recovered  on 
the  12th  day  of  October,  1871,  and  I  do  further  stipulate  and 
agree,  that  the  undivided  one-half  of  the  mining  ground, 
mentioned  in  a  certain  decree,  signed  on  the  12th  day  of 
October,  1871,  is  also  released,  and  the  title  now  of  the  same 
vests  in  R.  B.  Field,  said  decree  having  been  entered  in  the 
above-entitled  action.  But  this  stipulation  does  not  release 
any  other  parties  mentioned  in  the  decree,  nor  any  other 
property  mentioned,  save  and  except  the  undivided  half  the 

mining  ground. 

"C.  T.  COLLIER." 
"Witness:  A.  GK  P.  GEORGE." 

At  the  same  date,  the  following  release  of  the  mortgage 
was  filed  in  the  recorder' s  office  of  Jefferson  county,  to  wit : 


616  COLLIEK  v.  FIELD.  [Aug.  1  , 

"I,  C.  T.  Collier,  of  Jefferson  county,  Montana  Territory, 
do  hereby  certify  that  a  certain  mortgage,  bearing  date  the 
19th  day  of  July,  1869,  made  and  executed  by  R.  B.  Field, 
Wm.  M  Ervin  and  W.  H.  Metcalf,  and  recorded  in  the 
county  recorder's  office  of  Jefferson  county,  in  Book  A 
of  mortgages,  on  pages  187,  188,  and  filed  on  the  20th  day 
of  July,  1869,  has  been  paid  so  far  as  the  same  relates  to 
R.  B  Field,  and  I  do  hereby  consent  the  same  be  discharged 
of  record,  so  far  as  the  undivided  one-half  of  the  placer 
mining  claims  are  mentioned,  and  I  do  further  consent, 
hereby,  to  release  the  said  R.  B.  Field  from  all  further  lia- 
bility on  said  mortgage,  arid  on  the  two  joint  and  several 
promissory  notes  of  even  date  with  said  mortgage,  and 
signed  by  the  aforesaid  parties  who  signed  said  mortgage, 
and  all  of  the  undivided  one-half  said  mining  ground  des- 
ignated in  said  mortgage  is  fully  released,  and  the  title  to 
the  same  to  vest  in  R.  B.  Field.  But  this  satisfaction  of 
mortgage  is  not  to  release  any  other  parties  to  said  mortgage 
or  notes,  or  any  other  property  mentioned  in  said  mortgage, 
save  and  except  the  party  before  named  and  the  property 
hereinbefore  designated. 

"  In  witness  hereof  I  have  hereunto  set  my  hand  and  seal 
this  8th  day  of  November,  A.  D.  1871. 

"C.  T.  COLLIER.  [L.  s.] 

"  In  presence  of  A.  GK  P.  GEOKGE." 

Which  release  was  duly  acknowledged  and  recorded  in 
the  recorder's  office  of  said  Jefferson  county. 

Afterward,  on  the  25th  day  of  November,  1871,  an  order 
of  sale  was  duly  issued  for  all  the  mining  ground  mentioned 
and  described  in  said  mortgage  and  decree,  and  for  the  full 
amount  found  due  upon  said  notes,  no  credit  having  been 
given  on  account  of  the  payment  of  $1,528.30  made  by  the 
defendant  Field,  and  on  the  27th  day  of  December,  1871,  all 
the  mortgaged  property  was  sold  by  the  sheriff,  at  public 
sale,  to  plaintiff  Collier  for  the  sum  of  $3,200,  he  being  the 
highest  and  best  bidder  therefor. 

Thereupon,  at  the  May  term  of  said  district  court,  to  wit : 


1872.]  COLLIER  «.  FIELD.  617 

On  the  13th  day  of  May,  1872,  the  defendants  Ervin  and 
Metcalf  filed  their  motion  to  set  aside  the  sale  made  on  the 
27th  day  of  December,  1871,  assigning  as  cause  therefor, 
among  others,  the  following  reasons  : 

1.  The  original  debt  was  extinguished  before  the  issuance 
of  the  execution  or  order  of  sale  herein. 

2.  Before  the  issuance  of  said  order  of  sale,  these  defend- 
ants were  discharged  from  the  judgment  or  decree  upon 
which  it  was  founded. 

3.  At  the  time  of  the  sale  there  was  no  subsisting  indebt- 
edness of  these  defendants  to  plaintiff,  by  virtue  of  the 
judgment  or  decree  rendered  herein,  or  by  reason  of  any 
claim  or  claims  upon  which  such  judgment  or  decree  was 
founded. 

4.  The  debt,  upon  which  said  judgment  or  decree  was 
founded,  had  been  fully  paid  and  discharged. 

This  motion  was  overruled  by  the  court,  to  which  ruling 
the  defendants  duly  excepted,  and  appealed  to  this  court. 

1.  The  questions  presented  by  this  appeal  relate  to  the 
legal  effect  of  the  release  of  the  defendant  Field,  as  shown 
by  the  releases  herein  set  forth,  upon  the  defendants  Ervin 
and  Metcalf,  and  to  the  necessary  consequences  that  follow 
such  release.  The  notes,  upon  which  the  judgment  was 
rendered,  were  joint  and  several  promissory  notes,  signed 
by  the  defendants,  Field,  Ervin  and  Metcalf.  After  the 
rendition  of  the  judgment,  and  before  the  order  of  sale  was 
issued,  the  plaintiff,  for  the  consideration  of  $1,528.30,  paid 
to  him  by  Field,  released  Field  from  all  his  liability  on 
account  of  said  notes  and  judgment,  reciting,  in  the  release, 
that  the  discharge  of  Field  should  in  no  manner  affect  the 
liability  of  the  defendants  Ervin  and  Metcalf. 

The  first  release,  herein  mentioned,  was  filed  with  the 
clerk  of  the  court,  and  is  not  under  seal.  The  second  one, 
however,  which  is  a  release  from  all  liability  on  account  of 
the  notes  and  mortgage,  and  necessarily  a  release  from  the 
judgment  and  decree  rendered  thereon,  is  a  formal  instru- 
ment, properly  sealed,  witnessed,  acknowledged  and  re- 
corded, and  is  of  the  same  character  of  instrument  as  the 
VOL.  I.— 78. 


618  COLLIER  v.  FIELD.  [Aug.  T., 

mortgage  which  it  discharges,  so  that  the  question  of  the 
validity  of  a  release  under  seal,  or  not  under  seal,  does  not 
necessarily  arise  here  ;  but,  as  the  question  has  been  made 
and  argued,  we  feel  justified  in  saying  that  the  first  release, 
being  not  under  seal,  but  a  valuable  consideration  having 
been  paid  for  the  execution  thereof,  is  a  valid  instrument, 
and  that  a  seal  thereto  would  not  add  to  its  validity.  Where 
a  consideration  is  expressed  in  a  release,  or  admitted,  or 
otherwise  proved  to  have  passed  between  the  parties,  a  seal 
is  entirely  immaterial. 

The  consideration  gives  character  to  the  instrument,  and 
the  technical  effect  of  a  seal  is  only  important,  as  it  relates 
to  a  question  of  evidence.  A  seal  imports  a  consideration. 
It  furnishes  evidence  of  itself  that  a  consideration  passed 
between  the  parties ;  but,  if  a  consideration  can  be  other- 
wise proved,  a  seal  is  not  necessary,  except  in  those  cases 
where  a  release  is  designed  to  effect  the  conveyance  or 
transfer  of  real  estate,  or  some  interest  therein.  A  release, 
without  a  seal  and  without  a  consideration,  is  void  ;  and  the 
same  rule  applies  as  well  to  bonds,  promissory  notes,  and 
all  other  instruments  in  writing,  as  to  releases.  And  so  a 
release  with  a  consideration,  but  without  a  seal,  is  of  bind- 
ing force,  subject  to  the  foregoing  limitation  as  to  real  estate, 
the  distinction  being  that,  where  the.  consideration  is  not 
implied  or  expressed,  it  must  be  proved.  1  Pars,  on  Notes 
&  Bills,  248  ;  Benjamin  v.  McConnell  et  al.,  4  Gill.  545  ;  13 
Johns.  87 :  1  Cow.  122. 

These  releases,  then,  being  valid  instruments,  we  come  to 
the  consideration  of  the  question  as  to  the  effect  of  the  re- 
lease of  Field  upon  his  co-joint  debtors,  Ervin  and  Metcalf. 
Does  his  release  discharge  his  co-obligors  ? 

It  is  contended  by  the  plaintiff  that  these  notes  being  sev- 
eral as  well  as  joint  obligations,  the  release  of  one  of  the 
makers  does  not  discharge  the  others.  In  other  words,  that 
the  plaintiff,  the  payee,  can  discharge  either  of  the  joint 
makers,  and  retain  the  liability  against  the  others,  because 
of  the  several  characters  of  the  obligation.  We  do  not 
think  that  reason  or  the  authorities  support  the  proposi- 


1872.]  COLLIER  v.  FIELD.  619 

fcion.  On  the  contrary,  we  hold  that  a  release  of  one  of  two 
or  more  joint  and  several  debtors,  is  a  release  of  all,  and 
this  seems  to  be  the  language  of  the  books  since  before  the 
time  of  Lord  Coke.  The  reason  for  the  rule  is  obvious. 
The  debt  is  entire,  and  when  once  satisfied  or  released,  can 
no  longer  be  enforced  against  any  party  to  it.  One  satisfac- 
tion to  an  entire  debt,  duty  or  obligation,  be  it  several  as 
well  as  joint,  is  all  the  law  will  enforce.  The  several  char- 
acter of  the  obligation  does  not  change  the  rule  or  the  rea- 
son thereof.  The  doctrine  contended  for  seems  to  be  that  in 
a  joint  and  several  obligation  the  obligee  can  enforce  pay- 
ment as  many  times  as  there  are  obligors  to  the  instrument. 
There  is  no  authority  for  such  a  proposition.  Where  there 
is  one  entire  debt  there  can  be  but  one  discharge,  one  pay- 
ment, and  one  satisfaction,  and  if  one  of  the  joint  and  sev- 
eral debtors  pays  the  debt  and  receives  his  discharge,  such 
discharge  must  necessarily  release  his  co-debtors. 

A  reference  to  the  authorities,  we  believe,  will  sustain  the 
foregoing  propositions. 

In  Bacon's  Abridgment,  vol.  8,  p.  276  (g),  it  is  laid  down 
that  if  two  or  more  are  jointly  and  severally  bound  in  a 
bond,  a  release  to  one  discharges  the  others ;  and,  in  such 
case,  the  joint  remedy  being  gone,  the  several  is  so  likewise. 

In  Story  on  Promissory  Notes,  section  425,  the  same  prin- 
ciple is  enunciated  as  follows  :  A  release  of  one  joint 
maker  or  indorser  by  the  holder,  whether  they  are  accom- 
modation parties  or  not,  will  discharge  all  the  parties,  for 
such  a  release  is  a  complete  bar  to  any  joint  suit,  and  no 
separate  suit  can  be  maintained  in  such  a  case.  In  short, 
when  the  debt  is  extinguished  as  to  one  it  discharges  all, 
whether  the  parties  intended  it  or  not.  The  like  rule  ap- 
plies to  cases  where  a  satisfaction  has  been  made  by  any 
one  joint  maker  or  indorser,  or  by  any  one  partner  in  two 
firms  where  each  firm  is  bound  upon  the  note.  See  Chitty 
on  Bills,  ch.  9,  449,  450  ;  Bayley  on  Bills,  ch.  9,  342,  344  ;  1 
Story's  Eq.  Jur.,  §  112  ;  Byles  on  Bills,  232. 

So  in  the  case  of  Tiiekerman  et  al.  v.  Newhdll,  17  Mass. 
580,  the  same  doctrine  is  fully  maintained. 


620  COLLIER  v.  FIELD.  [Aug.  T. 

This  was  an  action  of  assumpsit  on  a  joint  and  several 
promissory  note,  signed  by  Joel  and  Isaac  Newhall  as 
principal,  and  by  Cheever  Newhall  as  surety.  The  defend- 
ants pleaded  the  general  issue,  which  was  joined,  and  a 
special  plea  in  bar,  wherein  it  was  alleged  that  after  making 
the  note  an  indenture  of  three  parts  was  entered  into  by 
said  Joel  and  Isaac  Newhall,  who  were  copartners  in  trade, 
of  the  one  part,  three  persons  as  trustees,  of  the  second 
part,  and  divers  of  the  creditors  of  the  said  J.  &  I.  Newhall, 
among  whom  was  the  plaintiff,  of  the  third  part,  in  and  by 
which  indenture  the  plaintiffs,  for  the  considerations 
therein  mentioned,  released  the  said  J.  &  I.  Newhall  from 
all  claims  and  demands  which  they  had  against  them. 

Upon  the  questions  made  by  this  plea  in  bar,  the  court 
say :  As  to  the  first  point  made  by  plaintiffs'  counsel, 
that  admitting  the  indenture  to  operate  as  a  release  to  J.  & 
I.  Newhall,  yet  it  will  not  have  that  effect  on  the  defendant, 
because  his  promise  is  several  as  well  as  joint.  This  has 
already  been  answered. 

The  authorities  are  perfectly  clear  that  a  release  to  one 
joint  and  several  obligor  discharges  both. 

And  so  in  the  case  of  Wiggin  v.  Tudor,  23  Pick.  444,  the 
court  say :  The  rule  of  law  is,  that  a  release  of  one  of  two 
joint  and  several  debtors  is,  in  legal  operation,  a  discharge 
of  both,  because  the  debt  is  entire;  and,  when  once  satisfied. 
can  no  longer  be  enforced. 

In  the  case  of  Benjamin  v.  McConnell  and  others,  4 
Gill.  (111.)  536,  the  court  say :  A  release  of  one  of  two  or 
more  joint,  or  joint  and  several  obligors  or  promisors,  is  a 
release  of  all ;  and  this  doctrine  is  affirmed  in  the  case  of 
Rice  v.  Webster  et  al,  18  111.  331. 

It  seems  useless  to  multiply  authorities,  upon  a  proposition 
so  well  settled,  and  we  have  no  hesitation  in  saying,  that  the 
release  of  Field,  for  a  valuable  consideration,  from  all  liabil- 
ity upon  the  notes  and  mortgages  mentioned  and  set  out 
herein,  is  also  a  release  of  Ervin  and  Metcalf.  There  can  be 
but  one  discharge,  but  one  satisfaction  of  the  debt,  and  if  Field 
discharged  the  debt,  then  there  is  no  claim  against  Ervin  ;iml 


1872.]  COLLIER  v  FIELD.  621 

Metcalf.  It  is  not  possible  to  discharge  one  of  two  joint  and 
several  obligors,  and  retain  a  legal  obligation  against  the 
others.  And  this  leads  us  to  the  consideration  of  the  pro- 
viso in  the  release,  wherein  it  is  specified  that  the  release 
of  Field  shall  not  affect  the  liability  of  Ervin  and  Metcalf. 

Recurring  again  to  Bacon's  Abridgment,  vol.  8,  p.  277  (g\ 
we  find  this  language  :  "  If  two  are  bound  in  an  obligation, 
and  the  obligee  releases  to  one  of  them,  proviso  that  the  other 
shall  not  take  advantage  of  it.  the  proviso  is  void." 

In  the  case  of  Benjamin  v.  McOonnell  etal.,  the  appellees 
sued  the  appellant,  upon  a  note  payable  on  demand,  for 
$204.44,  payable  to  Murray  McConnell  and  Holloway  Van 
Syckel,  and  signed  by  C.  Benjamin  &  Co.  The  appellant 
pleaded  payment ;  second,  that  appellant  and  Delehay 
made  the  note  as  partners  ;  that  on  the  27th  day  of  March, 
1844,  appellees  made  an  agreement  in  writing  with  Delehay, 
and  filed  the  same  of  record  in  the  Scott  circuit  court,  in  a 
chancery  suit  then  pending  in  that  court,  between  McCon- 
nell, Van  Syckel  and  James  A.  McDougall,  complainants, 
v.  Mark  W.  Delehay,  defendant,  by  which  agreement  Dele- 
hay  was  discharged  from  the  payment  of  the  note,  and  the 
same  as  against  him  was  released  and  canceled  ;  that,  by 
this  agreement,  it  was  expressly  provided  that  the  same 
should  not  operate  to  release  Benjamin,  nor  to  be  considered 
as  canceled  as  to  him,  and  that  this  agreement  was  made 
upon  a  compromise  and  settlement  of  the  chancery  suit. 
It  will  be  seen  that  the  proviso  to  this  release  was  the  same 
in  effect  as  the  one  in  the  case  under  consideration.  As  to 
the  effect  to  be  given  to  this  proviso,  the  court  say  :  That  a 
proviso  in  a  contract,  totally  repugnant  to  the  contract  itself, 
is  void.  Delehay  has  been  wholly  released  from  the  pay- 
ment of  the  note  ;  on  his  part  there  is  no  longer  any  liability. 
Benjamin  cannot  be  sued  alone.  If  an  action  be  brought 
against  them  jointly,  Delehay  can  interpose  no  plea  founded 
on  this  agreement,  personal  to  himself.  The  release,  when 
set  up,  is  an  effectual  bar  to  the  cause  of  action,  and 
destroys  the  right  to  maintain  the  suit.  The  contract  is 
entire,  whatever  discharges  one  releases  the  other. 


622  COLLIER  «.  FIELD.  [Aug.  T., 

In  the  case  of  Rice  v.  Webster  et  al. ,  the  court  having 
under  consideration  a  release  containing  a  proviso  similar 
to  that  in  the  case  last  cited,  and  of  the  same  legal  import 
as  the  proviso  in  the  case  at  bar,  say  :  Here  is  manifestly  an 
attempt  to  discharge  absolutely  one  of  the  parties,  and  to 
retain  the  legal  obligation  against  the  other.  This  the  law 
will  allow  no  ingenuity  of  language  to  effect.  The  paper  is 
a  nullity  or  it  must  be  made  effectual.  It  is  either  a  release 
of  both,  or  it  is  of  no  benefit  to  either.  It  is  founded  upon 
a  legal  consideration  moving  from  one  of  the  parties  which 
has  the  same  legal  effect  as  if  it  had  moved  from  the  other 
party  or  both  parties  jointly.  It  releases  Willey  forever 
from  all  process  arising  upon  the  joint  demand,  and  then 
undertakes  to  impose  the  condition  or  to  make  the  release 
depend  upon  the  condition  that  Rice  should  not  thereby  be 
released.  To  give  effect  to  this  condition  would  be  to 
destroy  the  release  itself,  even  as  to  Willey.  The  condition 
is  therefore  repugnant  to  the  previous  covenant,  and  must 
destroy  it,  or  be  destroyed  by  it.  When  that  is  the  case  the 
rule  of  law  is  well  settled  that  the  condition  must  give  way 
that  the  covenant  may  stand.  See,  also,  Owen  v.  ffoman,  2o 
L.  J.;  Wiggins  v.  Tudor,  28  Pick.  434  ;  Stearns  v.  Tappin, 
5  Duer,  294  ;  Hoosac  v.  Rogers,  8  Paige,  229  ;  Joy  v.  Warz, 
2  Wash.  C.  C  266. 

So  we  say  in  the  case  we  are  considering  ;  the  release  to 
Field  is  a  nullity  or  it  must  be  made  effectual.  Field  paid 
more  than  $1,500  for  this  release,  and  the  effect  of  this  pay- 
ment and  the  execution  of  the  release  is  precisely  the  same 
as  if  this  consideration  had  moved  from  Field,  Ervin  and 
Metcalf.  It  not  only  releases  Field,  but  also  Ervin  and 
Metcalf,  or  Field  is  still  liable  for  the  full  amount  of  the 
debt  notwithstanding  the  payment  of  $1,500.  The  proviso 
is  repugnant  to  the  covenant,  and  must  fall  that  it  may 
stand.  We,  therefore,  say  that  the  legal  effect  of  the  re- 
lease to  Field  was  a  payment  and  cancellation  of  the  entire 
debt  and  judgment  against  Field,  and  also  against  Ervin 
and  Metcalf,  and  the  order  of  sale  having  been  issued,  and 
the  sale  made,  upon  a  judgment  that  had  been  fully  can- 


1872.  J  COLLIER  «.  FIELD.  t>23 

3eled  and  discharged,  the  same  are  utterly  void  and  of  no 
effect. 

2.  After  the  rendition  of  the  judgment,  and  in  the  proceed- 
ings to  sell  the  mortgaged  premises,  the  plaintiff  seems  to 
have  acted  upon  the  supposition  i  hat  the  release  to  Field  was 
a  nullity,  not  only  as  to  Ervin  and  Metcalf,  but  as  to  Field 
himself,  and  that  the  payment  by  Field  to  him  of  $1,528.30, 
was  a  pure  donation  ;  for,  we  find  that  the  execution  and 
order  of  sale  was  issued  for  the  full  amount  of  the  judg- 
ment, no  credit  having  been  given  on  account  of  the  pay- 
ment by  Field,  and  all  the  mining  ground  mentioned  and 
described  in  the  mortgage,  including  the  one-half  released 
to  Field,  was  sold  and  bid  in  by  plaintiff  for  the  sum  of 
$3, '200,  that  being  the  amount  of  the  judgment  and  costs,  so 
that,  as  the  case  stands,  the  plaintiff  has  received  $3,025.70, 
the  amount  of  the  judgment,  and  also  $1,528.30,  making 
the  sum  of  $4,544  recovered  upon  a  judgment  of  $3,025.70. 
Such  a  proceeding,  in  the  absence  of  any  explanation  thereof, 
violates  every  principle  of  honesty  and  fair  dealing  ;  and  to 
confirm  this  sale  would  be  to  rob   one  man  that  another 
might  receive  twice  what  belongs  to  him. 

If  the  release  was  utterly  void  as  to  all  the  parties,  the 
sale,  under  the  circumstances  disclosed  in  the  record,  would 
have  to  be  set  aside. 

3.  The  remaining  question  relates  to  the  computation  of 
interest  upon  the  notes  herein  set  forth. 

The  first  bears  date  July  19,  1869,  and  is  payable  on  or 
before  the  1st  day  of  June,  1870,  with  interest  at  the  rate 
of  three  per  cent  per  month  until  paid. 

The  second  note  is  of  the  same  character,  bearing  date 
July  19,  1869,  and  payable  on  or  before  the  1st  day  of 
August,  1870,  with  interest  at  the  rate  of  three  per  cent  per 
month  until  paid. 

Our  statute  provides  (Bannack  Stat.  535):  "Creditors 
_liall  be  allowed  to  collect  and  receive  interest  when  tlviv 
is  no  agreement  as  to  the  rate  thereof,  at  the  rate  of  ten  ]><•)• 
cent  per  annum,  for  all  moneys  after  they  becom>>  <lu".  ii]  »• 
any  bond,  promissory  note,"  etc.,  etc. 


624  COLLIER  v.  FIELD.  [Aug.  T., 

Section  3  of  the  same  act  provides  that :  "  The  parties  to  any 
bond,  bill,  promissory  note,  or  other  instrument  in  writing, 
may  stipulate  therein  the  payment  of  a  greater  or  higher 
rate  of  interest  than  ten  per  cent  per  annum,  and  any  such 
stipulation  contained  in  any  such  instrument  of  writing  may 
be  enforced  in  any  court  of  law  or  equity,  of  competent 
jurisdiction,  in  this  Territory." 

Under  this  statute,  we  have  already  heard  (Davis  v.  Hen- 
drie,  ante,  499),  that  it  was  competent  for  parties  to  con- 
tract for  a  higher  or  greater  rate  of  interest  than  ten  per 
cent  per  annum,  after  the  maturity  of  the  note,  so  that  the 
only  question  now  for  us  to  determine  is  :  Did  the  parties  so 
contract  in  the  notes  upon  which  the  decree  in  this  case  was 
founded  ? 

By  the  terms  of  the  notes,  was  there  any  contract  or  agree- 
ment to  pay  interest  at  the  rate  of  three  per  cent  per  month 
after  the  notes  became  due?  Do  the  words  "with  interest 
at  the  rate  of  three  per  cent  per  month  until  paid"  import 
a  contract  to  pay  interest  at  that  rate  after  the  maturity  of 
the  notes  ? 

It  will  be  seen  by  a  computation  of  the  interest  upon  the 
notes,  that  interest  at  the  rate  of  three  per  cent  per  month 
was  calculated  and  allowed  in  the  decree  from  the  date  of 
the  notes  up  to  the  date  of  the  rendition  of  the  decree, 
whereas  the  defendants  contend  that  by  the  terms  of  the 
notes  they  only  contracted  to  pay  interest  at  that  rate  to  the 
maturity  of  the  notes. 

The  contract  set  out  in  these  notes  must  be  construed  like 
any  other  contracts.  If  there  is  no  ambiguity  or  uncertainty 
in  the  agreement,  we  must  look  to  the  words  of  the  contract 
to  arrive  at  the  intention  of  the  parties. 

Let  us  examine  this  contract.  Take  for  instance  the  first 
note.  The  makers  promise  to  pay  to  the  payee  $400  on  or 
before  the  1st  day  of  June.  1870,  with  interest  at  the  rate 
of  three  per  cent  per  month  until  paid.  This  agreement  to 
pay  interest  must  be  construed  with  reference  to  the  balance 
of  the  contract.  The  contract  is  to  continue  in  force  until 
the  1st  day  of  June,  1870,  at  which  time  the  note  becomes 


1872.]  COLLIER  v.  FIELD.  625 

due  and  payable,  and  the  agreement  as  to  interest  cannot  be 
extended  without  express  words  to  that  effect  beyond  the 
time  fixed  for  the  payment  of  the  principal.  The  payee 
promises  that  the  makers  may  have  the  money  until  the 
1st  day  of  June,  1870,  and  no  longer,  and  the  makers 
promise  that  they  will  pay  at  that  date.  There  is  no  inti- 
mation that  this  contract  is  to  be  extended  beyond  the  date 
fixed  by  the  parties,  and  the  contract  being  reduced  to  writ- 
ing would  preclude  any  parol  understanding  of  the  kind. 
So,  then,  after  the  note  has  run  its  allotted  time,  at  a  given 
rate  of  interest,  that  is  when  the  contract  has  expired  by  its 
own  limitation,  the  relative  rights  of  the  parties,  as  fixed  by 
the  contract,  ceases.  They  contract  for  a  definite  fixed 
period.  The  time  expires,  the  money  becomes  due,  and  its 
payment  can  be  enforced,  and  if  not  enforced,  the  amount 
of  the  note  becomes  so  much  money  due,  and  the  statute 
fixes  the  rate  of  interest. 

The  case  of  McLane  v.  Abrams  et  al.,  2  Nev.  199,  is 
relied  upon  as  opposed  to  the  view  herein  expressed.  The 
Nevada  statute  which  controlled  the  case  is  as  follows : 

"Parties  may  agree  in  writing  for  the  payment  of  any 
rate  of  interest  whatever  on  money  due  or  to  become  due  on 
any  contract.  Any  judgment  rendered  on  such  contract 
shall  conform  thereto  and  shall  bear  the  interest  agreed 
upon  by  the  parties,  and  which  shall  be  specified  in  the 
judgment." 

This  statute  was  held  to  continue  the  rate  of  interest  as 
fixed  in  the  note,  after  its  maturity,  and  up  to  the  time  of 
the  rendition  of  the  judgment.  The  case  depended  for  its 
decision  entirely  upon  the  wording  of  the  Nevada  statute, 
and  in  the  absence  of  any  such  provision  in  our  statute  the 
case  cannot  be  taken  as  authority  here. 

The  doctrine  that  the  words  "until  paid,"  must  be  con- 
strued with  reference  to  the  date  of  payment,  is  sustained 
in  tli"  decision  of  Brewsterv.  Wakefield,  22  How.  118.  In 
that  case  it  appears  that  Brewster,  on  the  llth  day  of  July, 
18o4.  executed  his  two  promissory  notes,  whereby  in  one 
of  them  lie  promised  to  pay,  twelve  months  after  the  date 
VOL.  I.  —  79 


626  COLLIER  v.  FIELD.  [Aug.  T. 

thereof,  to  the  order  of  Wakefield,  the  sum  of  $5,583.25, 
with  interest  thereon  at  the  rate  of  twenty  per  cent  per  an- 
num from  the  date  thereof,  for  value  received,  and  in  the 
other  promised  to  pay  to  the  order  of  said  Wakefield  the 
further  sum  of  $2,000,  twelve  months  after  date,  with  in- 
terest thereon  at  the  rate  of  two  per  cent  per  mouth  from 
the  date. 

In  one  of  the  notes  it  was  an  agreement  to  pay  interest  at 
such  a  rate  per  annum,  and  in  the  other  at  such  a  rate  per 
month. 

Chief  Justice  TAISTEY,  in  delivering  the  opinion  of  the 
court,  says :  "  The  contract  being  entirely  silent  as  to  in- 
terest if  the  notes  should  not  be  punctually  paid,  the  cred- 
itor is  entitled  to  interest  after  that  time  by  operation  of  law 
and  not  by  any  provision  of  the  contract.  Nor  is  there  any 
thing  in  the  character  of  this  contract  that  should  induce 
the  court  by  supposed  intendment  of  the  parties  or  doubtful 
inferences  to  extend  the  stipulation  for  interest  beyond  the 
time  specified  in  the  written  contract." 

That  is  to  say,  the  intention  of  the  parties  shall  be  arrived 
at  by  the  words  they  use  to  convey  their  meaning.  And  in 
the  case  at  bar,  we  say  the  words,  "  until  paid,"  when  taken 
in  connection  with  the  balance  of  the  contract  wherein  the 
date  of  payment  is  fixed,  are  controlled  by  this  limitation, 
and  they  do  not  extend  the  contract  beyond  this  date,  any 
more  than  the  words  per  annum  or  per  month  did  in  the 
case  of  Brewster  v.  Wakefield.  These  words  in  and  of 
themselves  do  not  make  a  contract,  and  when  construed 
with  the  balance  of  the  agreement  are  in  perfect  harmony 
with  it  and  together  make  a  complete  contract.  To  hold 
that  these  words  extend  the  contract  the  court  must  say 
that  the  parties,  in  the  absence  of  any  stipulation  upon  the 
subject,  agreed  for  a  valuable  consideration  that  these  notes 
should  not  be  paid  at  their  maturity,  but  that  they  should 
run  for  an  indefinite  period,  at  the  pleasure  of  either  party, 
and  that  the  time  of  payment  was  wholly  indefinite  and 
uncertain.  If  the  court  should  take  upon  itself  to  say  thi<. 
it  would  simply  make  a  contract  for  the  parties,  to  which 


1872.]  Wo  KM  ALL  v.  REINS.  627 

the  parties  themselves  would  be  utter  strangers,  which  con- 
tract would  be  perfectly  indefinite  as  to  its  duration  and 
void  for  the  want  of  a  consideration. 

There  is  nothing  in  the  nature  of  the  contract  to  induce  a 
court  by  doubtful  inferences  to  extend  the  stipulation  as  to 
interest,  and  we  are  certainly  not  called  upon  to  manufac- 
ture a  new  contract  for  the  parties,  and  then  to  give  a  con- 
struction to  this  child  of  our  own  imaginations. 

We  have  held  that  parties  may  stipulate  and  agree  as  to 
the  rate  of  interest  after  the  maturity  of  the  note,  but  the 
court  cannot  supply  such  an  agreement,  and  if  a  greater 
rate  of  interest  than  ten  per  cent  per  annum  is  to  be  re- 
ceived after  the  note  becomes  due,  it  must  be  so  written 
down  in  the  bond. 

Judgment  reversed  and  cause  remanded. 

Judgment  reversed. 


WORMALL,  respondent,  v.  REINS,  appellant. 

PRACTICE  —  amendments  to  pleadings.  Courts,  in  their  discretion,  can  allcr- 
amendments  to  a  complaint  before  the  case  is  submitted  to  a  jury,  to  make 
the  allegations  correspond  with  the  proof. 

PRACTICE  —  amendments  to  allegations  nol  denied  in  answer.  In  this  action,  to 
recover  damages  for  mal-practice  by  a  physician,  the  court  did  not  abuse 
its  discretion  in  allowing  the  plaintiff  to  amend  the  complaint,  after  the 
testimony  had  been  closed,  by  striking  out  the  words  "fractured"  and 
"broken,''  although  the  answer  did  not  deny  the  allegation  of  the  com- 
plaint, that  the  elbow  and  arm  of  plaintiff  were  "dislocated,  put  out  of 
joint,  disrupted,  broken,  fractured,  wounded  and  bruised." 

PRACTICE  —  continuance  after  amendments  during  trial.  The  court  did  not 
abuse  its  discretion  in  refusing  a  continuance,  after  the  plaintiff  had  been 
permitted  to  make  an  amendment  to  the  romplaint  during  the  trial,  which 
did  not  present  a  new  material  issue. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

Tins  CUSP  was  before  the  court  at  the  January  term,  1872, 
n)ifi\  4*M.     Aft'M-  tho  notion  was  commenced  by  plaintiff,  she 


628  WOBMALL  v.  REINS.  [Aug.  T., 

was  married  to  A.  H.  Wormall.     In  March,  1872,  the  case 
was  tried  by  a  jury,  that  found  for  plaintiff  for  $5,000  dam- 
ages.    The  court,  WADE,  J.,  overruled  a  motion  for  a  new 
trial,  and  Reins  appealed. 
The  facts  are  stated  in  the  opinion. 

E.  W.  TOOLE,  CHUMASERO  &  CHADWICK,  and  SHOBEE  & 
LOWRY,  for  appellant. 

The  complaint  avers,  and  the  answer  does  not  deny  the 
averment,  that  the  coronoid  process  of  respondent' s  arm  was 
broken  and  fractured.  The  evidence  of  the  medical  experts 
shows  that  such  an  injury  was  not  susceptible  of  cure.  Re- 
spondent must  prove  that  appellant  treated  an  incurable 
injury  to  respondent  in  an  unskillful  manner.  The  allow- 
ance of  the  amendment  to  the  complaint,  omitting  the  words 
"  fractured  and  broken,"  changed  the  gist  of  the  action.  It 
injured  the  appellant,  and  did  not  subserve  substantial 
justice.  It  rendered  inapplicable  all  the  evidence  for  the 
appellant.  Appellant  is  entitled  to  a  new  trial,  to  meet  an 
issue  unknown  to  the  case  when  it  was  tried. 

The  affidavits  of  appellant  and  his  attorneys  show  that 
they  were  surprised  by  the  allowance  of  this  amendment, 
and  the  continuance  should  have  been  granted.  This  refusal 
to  continue  the  case  was  arbitrary.  In  all  cases  in  which 
amendments  are  allowed,  to  conform  to  the  proof  and  sur- 
prise followed,  a  continuance  is  always  granted.  Appellant 
has  a  right  to  meet  the  newly -made  issue  at  a  subsequent 
trial. 

W.  F.  SANDERS  and  Gr.  G-.  SYMES,  for  respondent. 

The  allowance  of  amendments  and  granting  of  continu- 
ances are  entirely  within  the  discretion  of  the  court.  A  case 
will  not  be  reversed  on  this  ground  unless  it  is  clearly  shown 
that  there  was  an  abuse  of  discretion.  1  Van  Sant.  PL 
812-818  ;  Kreisten  v.  Madden,  38  Cal.  158  ;  Pier  son  v.  Me- 
HaJillL  22  id.  127  ;  Walden  v.  Craig,  7  Wheat.  576. 

The  amendment  was  made  in  this  case  to  make  the  plead- 
ings conform  to  the  proof,  and  enable  the  jury  to  decide  the 


1872.]  WORMALL  v.  REINS  629 

case  on  the  evidence.  It  was  allowed  in  furtherance  of 
justice.  Hunter  v.  Hudson  River,  20  Barb.  493. 

Appellant  was  not  surprised  by  the  amendment.  The 
testimony  for  one  week  turned  upon  the  point  whether  or 
not  the  coronoid  process  was  fractured.  If  appellant  thought 
that  this  fact  was  admitted  in  the  complaint,  why  did  he 
allow  evidence  to  be  introduced  regarding  it  ?  And  why 
did  he  introduce  evidence  to  prove  what  he  claims  the  com- 
plaint admitted  ? 

Amendments  can  be  allowed  during  the  trial  to  present 
the  real  issues  :  and  it  is  not  too  late  after  the  testimony  is 
closed.  3  Estee'  s  PL  301,  and  cases  cited ;  Valencia  v. 
Couch,  32  Cal.  339 ;  Stringer  v.  Dams,  30  id.  318. 

KNOWLES,  J.  This  is  an  action  for  damages  for  the  mal- 
practice of  the  appellant  Reins  while  acting  as  a  surgeon. 

The  only  errors  complained  of  in  the  argument  of  ap- 
pellants is  the  allowing  of  an  amendment  to  the  complaint 
after  the  close  of  the  testimony  on  the  trial  of  the  cause 
and  the  refusal  of  the  court  to  continue  the  cause  on  the  ap- 
plication of  the  defendants  after  allowing  such  amendment. 

The  complaint  averred  that  the  elbow  and  arm  of  the 
plaintiff,  Minnie  Wormall.  was  dislocated,  put  out  of  joint, 
disrupted,  broken,  fractured,  wounded  and  bruised.  The 
answer  of  the  defendant  did  not  traverse  this  allegation. 
The  contest  in  the  case  seems  to  have  been  from  the  state- 
ment of  the  evidence  in  the  record  upon  the  point  as  to 
whether  the  elbow  was  put  out  of  joint  and  dislocated,  and 
what  is  termed  the  coronoid  process  of  the  ulna  at  the  elbow 
was  broken.  The  plaintiff  introduced  evidence  to  the  effect 
that  the  elbow  was  only  put  out  of  joint  and  dislocated,  and 
that  the  coronoid  process  was  not  broken.  The  defendant 
offered  evidence  to  the  effect  that  the  elbow  was  not  only 
dislocated,  but  this  coronoid  process  was  broken.  It  seemed 
to  be  conceded  by  all  the  experts  in  the  case,  that  if  the 
coronoid  process  at  the  elbow  had  been  broken,  that  the  hurt 
suffered  by  plaintiff  was  a  much  more  serious  one  than  a 
simple  dislocation  of  the  elbow  joint,  and  one  much  more 


630  WORMALL  v.  REINS.  [Aug.  T., 

difficult  to  be  treated.  The  defendant's  attorneys  asked  the 
court  to  instruct  the  jury  that  the  plaintiff  had  admitted  in 
the  pleadings  that  the  arm  was  both  fractured  and  dislo- 
cated, and  the  jury  must  take  this  allegation  as  true,  and 
in  considering  whether  the  defendant  is  liable,  take  this  fact 
into  consideration.  The  plaintiffs  thereupon  offered  to 
amend  their  complaint  to  correspond  with  the  proofs  in  the 
case,  and  show  that  the  arm  of  the  defendant  was  only  dis- 
located at  the  elbow.  This  the  court  permitted  them  to  do. 
The  court  may,  in  furtherance  of  justice  and  upon  such 
terms  as  are  just,  allow  the  amendment  of  any  pleading  at 
any  stage  of  a  proceeding.  This  power  is  a  discretionary 
one,  and  this  court  cannot  review  the  exercise  of  the  same. 
Unless  there  has  been  some  abuse  of  that  discretion,  courts 
have  frequently  permitted  pleadings  to  be  amended  even 
after  verdict  and  judgment  to  correspond  with  the  proofs  in 
the  case,  and  I  can  see  no  reason  for  refusing  to  allow  the 
amendment  of  a  pleading  to  correspond  with  the  proofs 
before  the  cause  is  submitted  to  a  jury. 

In  the  second  place  the  power  to  grant  or  the  refusal  to 
grant  a  continuance,  also  rests  in  the  legal  discretion  of  the 
court  to  whom  such  application  is  made,  and  the  refusal  to 
grant  the  same,  or  the  granting  thereof,  cannot  be  reviewed 
by  this  court  unless  there  appears  to  have  been  an  abuse  of 
this  discretion. 

Where  the  evidence,  on  a  trial,  introduced  by  the  plaintiff 
goes  to  the  point  that  only  a  dislocation  of  the  elbow  joint 
was  the  injury  suffered  by  the  plaintiff,  and  that  the  coronoid 
process  of  the  ulna  was  not  fractured,  and  the  testimony  in- 
troduced by  the  defendant  goes  to  the  point  that  the  elbow 
joint  was  not  only  dislocated,  but  that  the  coronoid  process 
of  the  ulna  was  fractured  and  the  court  permitted  the  plain- 
tiff to  amend  his  pleadings  so  as  to  present  this  issue,  we 
cannot  see  that  such  action  would  be  any  ground  for  a  con- 
tinuance. It  may  be  proper  to  remark,  also,  that  the 
amendment  of  the  plaintiffs  was  not  of  such  a  serious  char- 
acter as  the  plaintiffs  seem  to  think  it  was.  It  is  true  that 
the  complaint  did  allege  that  the  arm  and  elbow  were  both 


187:?.]  WOKMALL  o.  REINS.  331 

dislocated  and  fractured.  This  was  not,  however,  an  ad- 
mission that  the  elbow  was  dislocated  and  that  the  coronoid 
process  of  the  ulna  was  fractured,  a  peculiar  and  unusual 
fracture.  There  may  be  other  fractures  of  the  arm  and 
elbow  besides  that  of  the  coronoid  process  of  the  ulna, 
and  fractures  which  would  not  very  materially  have  affected 
the  treatment  of  a  dislocated  elbow.  It  cannot  then  be 
considered  that  this  admission  was  one  of  any  great  im- 
portance in  this  case  because  it  is  not  an  admission  of  a 
fracture  that  rendered  the  treatment  of  the  dislocated  elbow 
difficult. 

Section  79,  page  42,  of  our  practice  act  provides  that  "the 
court  shall,  in  every  stage  of  an  action,  disregard  any  error 
or  defect  in  the  pleadings  or  proceedings  which  shall  not 
affect  the  substantial  rights  of  the  parties,  and  no  judgment 
shall  be  reversed  or  affected  by  reason  of  such  error  or  de 
feet." 

As  the  admission  in  the  record  cannot  be  considered  as 
an  admission  of  the  fracture  of  the  coronoid  process  of  the 
ulna,  the  most  material  issue  in  the  case,  and  the  only 
one  claimed  by  the  defendant  to  have  existed,  I  think  that 
admission  was  not  one  that  affected  the  substantial  rights 
of  the  parties. 

The  allowing  of  an  amendment  in  the  pleadings  so  as  to 
preclude  this  admission,  was  not  one  that  presented  any 
new  material  issue  in  the  case,  and  hence  there  could  have 
been  no  abuse  of  discretion  in  refusing  a  continuance  for 
that  cause. 

Judgment  of  the  court  below  is  affirmed,  with  costs. 

Judgment  affirmed. 


632  RADEB  t>.  ERVIN.  [Aug.  T. 


JRADER,  respondent,  v.  EBVIK  et  al.,  appellants. 

MOB  rGAGE  —  decree  of  foreclosure  — rights  of  redemptioners.  A  decree,  which 
orders  a  sale  of  mortgaged  premises  to  satisfy  the  aggregate  amount  of  sev- 
eral mortgages  011  separate  parcels  of  property,  made  to  secure  the  payment 
of  distinct  debts  of  different  sums,  due  at  different  times  and  bearing  differ- 
ent rates  of  interest,  and  which  does  not  preserve  the  rights  of  redemption- 
ers,  is  void. 

MORTGAGE  —  assignment  —  seal.  The  assignment  of  a  mortgage  is  valid  with- 
out a  seal. 

CASE  AFFIRMED.  The  case  of  Cottier  v.  Field,  ante,  612,  holding  that  certain 
promissory  notes  bear  certain  rates  of  interest,  affirmed. 

Appeal  from  the  First  District,  Jefferson  County. 

IN  May,  1872,  the  court,  MURPHY,  J.,  overruled  the  mo- 
tion of  Ervin  and  Metcalf  to  set  aside  the  sale  of  certain 
property  under  a  decree  of  court  for  the  foreclosure  of  cer- 
tain mortgages,  and  they  appealed.  The  facts  are  stated  in 
the  opinion. 

PAGE  &  COLEMAN,  for  appellants. 

The  decree  is  void  as  to  appellants,  and  should  be  set 
aside.  The  action  was  not  brought  as  a  chancery  suit.  The 
complaint  is  not  framed  as  a  bill  in  chancery,  and  prays 
legal  rather  than  equitable  relief.  Dunphy  v.  Klein- 
schmidt,  11  Wall.  (U.  S.)  6K) ;  Orchard  v.  Hughes,  1  id. 
76. 

Appellants  were  not  made  parties  defendant,  as  no  pro- 
cess was  prayed  against  them.  1  Dan.  Ch.  Pr.  391 ;  Story's 
Eq.Pl.,§44. 

Courts  cannot  take  judicial  notice  of  the  signatures  of  per- 
sons, not  officers  thereof.  No  proof  was  made  to  the  court 
of  the  genuineness  of  the  signatures  of  what  purports  to  be 
an  acknowledgment  of  service  indorsed  on  the  summons. 
Alderson  v.  Bell,  9  Cal.  315.  No  order  pro  confesso  was 
made  before  the  decree  was  entered. 

The  decree  is  not  warranted  by  the  complaint.  The 
note  to  Blacker  could  be  sued  upon  again  by  the  holder. 


1872.]  RADER  v.  ERVIN.  633 

The  notes  that  respondent  paid  could  not  be  sued  upon 
again.  Respondent' s  only  remedy  is  for  money  paid  to  the 
use  of  appellants. 

The  assignments  of  the  last  two  mortgages  to  respondent 
are  not  under  seal  and  are  invalid.  Respondent  could  not 
bring  a  suit  on  those  mortgages.  The  common-law  rules 
as  to  such  instruments  are  not  changed  by  our  statute.  Acts 
1865,  479. 

The  property  enumerated  in  the  mortgages  is  not  identi- 
cal in  any  two  of  them.  The  court  erred  in  making  the  sum 
of  the  alleged  debts  a  lien  upon  the  whole  property  mort- 
gaged. Property  included  in  first  mortgage  should  be  ex- 
hausted before  recourse  is  had  upon  a  second,  so  that  the 
amount  of  redemption  money  due  upon  each  may  be  accu- 
rately ascertained.  Roan  v.  Reynolds,  11  Cal.  14. 

The  computation  of  interest,  upon  which  the  decree  is 
founded,  is  erroneous.  There  was  no  contract  for  interest 
after  the  maturity  of  the  notes.  Brewster  v.  Wakefield,  22 
How.  (U.  S.)  118.  Respondent  could  collect  legal  interest 
only.  Acts  1865,  635  ;  Talcott  v.  Marston,  3  Minn.  344. 

•The  sale  of  property  under  the  decree  is  void.  The  sheriff 
is  not  an  officer  of  the  chancery  court.  The  transfer  of  the 
judgment  from  respondent  to  Collier  satisfied  the  same. 
Brightly 's  Fed.  Dig.,  "Release,"  15. 

W.  F.  SANDERS,  G.  G.  SYMES  and  A.  G.  P.  GEORGE,  for 
respondent. 

Appellants  appeared  and  made  no  objection  to  the  entry 
of  the  d'-cree  in  the  court  below.  The  decree  is  in  accord- 
nnc^  with  the  rules  of  practice  of  the  supreme  court  of  the 
United  States  in  equity  and  the  provisions  of  the  Code. 
Rule  92,  U.  S.  Sup.  Ct,  Rules. 

Appellants  voluntarily  appeared,  and  no  process  was 
required.  The  court  heard  proof  sufficient  to  enable  it  to 
render  judgment.  The  decree  also  recites  that  due  proof  of 
service  of  process  was  heard,  which  would  include  proof 
cf  the  genuineness  of  signatures  of  appellants  admitting 
service  of  process. 
VOL.  I  —  80. 


634  RADER  ?\  ERVIN.  [Aug.  T., 

The  complaint  states  facts  sufficient  to  constitute  a 
cause  of  action  on  each  of  the  notes.  The  decree  is  sup- 
ported by  the  complaint.  The  surety  in  a  note  may  pay 
the  same  and  sue  the  maker,  and  foreclose  the  mortgage 
given  to  secure  it  the  same  as  the  original  payee. 

The  assignment  of  a  debt  secured  by  mortgage  is  not  re- 
quired to  be  under  seal.  The  mortgage  follows  the  note  as 
collateral  without  assignment. 

This  court  has  decided  in  Dams  v.  Hiendrie,  ante,  499, 
that  the  interest  was  properly  calculated. 

Appellants  cannot  raise  the  point  that  respondent  is  not 
the  owner  of  the  notes,  after  judgment.  Such  an  objection 
can  only  be  raised  by  demurrer  or  answer. 

Collier  purchased  the  judgment  to  protect  his  lien  on  the 
same  property,  which  was  subject  to  the  lien  of  respondent. 
The  transfer  of  the  judgment  from  respondent  to  Collier  did 
not  satisfy  the  judgment. 

The  question  of  setting  aside  the  sale  was  in  the  discre- 
tion of  the  court.  The  decision  will  not  be  reversed  unless 
there  was  an  abuse  of  discretion  affecting  the  substantial 
rights  of  the  parties. 

Most  of  the  objections  raised  by  appellants  are  mere 
irregularities  which  are  cured  by  the  judgment.  They 
could  only  have  been  taken  advantage  of  during  the  pro- 
gress of  the  proceedings. 

There  is  no  order  in  the  transcript  overruling  the  motion 
to  set  aside  the  sale.  This  objection  cannot  be  noticed. 
The  only  question  is,  will  the  complaint  support  the  decree  ? 
A  sale  cannot  be  set  aside  after  the  sheriff's  report  of  sale 
and  delivery  of  the  certificate  of  sale,  on  motion.  A  bill  in 
equity  must  be  tiled. 

WADE,  C.  J.  This  is  an  appeal  from  an  order  in  the  court 
below,  overruling  a  motion  to  set  aside  a  sale  of  real  prop 
erty,  made  under  and  by  virtue  of  a  proceeding  to  foreclose 
certain  mortgages,  mentioned  and  described  in  plaintiff's 
complaint,  and  the  correctness  or  incorrectness  of  the  ruling 
upon  this  motion  can  only  be  determined  by  a  determi- 
nation of  the  sufficiency  of  the  complaint. 


1872.]  RADER  v.  ERVIN.  635 

The  complaint  substantially  avers,  that  on  the  12th  day 
of  September,  1870,  the  defendants,  William  M.  Ervin,  W. 
H.  Metcalf,  David  Blacker  and  Reuben  Rader,  executed  a 
promissory  note  to  A.  M.  Woolfolk,  for  the  sum  of  $1,300, 
payable  in  twelve  months  after  date,  with  interest  at  the 
rate  of  two  per  cent  per  month,  from  date,  until  paid  ;  also, 
that  said  defendants  executed  to  Clark,  Conrad  and  Curtin, 
a  certain  other  promissory  note,  for  the  sum  of  $500,  pay- 
able on  or  before  the  1st  day  of  June,  1871,  with  interest 
at  the  rate  of  two  per  cent  per  month,  from  date,  until  paid  ; 
that  said  notes  were  signed  by  said  Blacker  and  Rader,  as 
sureties  for  said  Ervin  and  Metcalf;  that  to  secure  said 
sureties  for  so  signing  said  notes,  in  the  event  that  they 
were  compelled  to  pay  the  same,  said  defendants,  on  the 
19th  day  of  September,  1870,  executed  to  said  Reuben 
Rader  a  mortgage  upon  certain  mining  property,  situate  in 
Jefferson  county,  which  mortgage  was  duly  acknowledged 
and  recorded  ;  that  to  secure  said  Blacker  for  so  signing 
said  notes,  said  defendants  executed  to  said  Blacker  a  cer- 
tain other  mortgage  upon  the  same  and  other  property,  as 
described  in  the  mortgage  to  Rader,  which  mortgage  was 
properly  acknowledged  and  recorded  ;  that  on  the  22d  day 
of  September,  1871,  said  notes  were  duly  paid  by  said 
Rader,  and  indorsed  on  said  notes ;  that  the  mortgage  to 
Blacker  also  provided  for  the  payment  of  a  certain  other 
note,  for  Si, 000,  given  to  said  Blacker  by  said  defendants, 
Ervin  and  Metcalf,  bearing  interest  at  the  rate  of  two  per 
cent  per  month  ;  that  on  the  26th  day  of  September,  1871, 
said  mortgage  was  duly  assigned  to  said  Rader. 

For  a  second  cause  of  action,  said  complaint  alleges  that 
on  the  15th  day  of  March.  1869,  the  defendants,  Ervin  and 
Metcalf,  executed  and  delivered  to  T.  C.  Collier  their  cer- 
tain promissory  note,  for  the  sum  of  $800,  payable  on  or 
He  fort1  the  1st  day  of  August,  1869,  in  bankable  gold  dust, 
with  interest  at  the  rate  of  four  per  cent  per  month  :  that  to 
secure  the  payment  of  said  note,  said  defendants  executed 
and  delivered  to  said  Collier  a  mortgage  of  that  date,  which 
mortgage  covers  a  part  of  the  same  property  as  the  mort- 


636  RADER  «.  EBVIN.  [Aug.  T., 

gage  to  Rader  and  the  mortgage  to  Blacker,  and  said 
mortgage,  also,  covers  other  property  not  included  in  the 
Rader  and  Blacker  mortgages,  which  mortgage  was  duly 
acknowledged  and  recorded  ;  that  on  the  26th  day  of  Sep- 
tember, 1871,  said  note  and  mortgage  was  duly  assigned  to 
this  plaintiff. 

Upon  this  showing,  the  plaintiff  demands  judgment 
against  defendants,  Ervin  and  Metcalf,  for  the  sum  of 
$4,819.10,  that  being  the  amount  due  upon  the  notes,  in  the 
complaint  described,  with  interest  at  the  rate  mentioned  in 
the  notes,  from  their  respective  dates,  up  to  the  time  of  filing 
the  complaint,  and  for  a  decree  ordering  a  sale  of  the  mort- 
gaged premises. 

The  defendants  make  default,  and  thereupon  a  decree  is 
entered  in  favor  of  the  plaintiff,  wherein  the  sum  of 
$4,819.10  is  found  due  the  plaintiff,  upon  the  notes  in  the 
complaint  described,  and  it  is  ordered  and  adjudged,  that 
all  and  singular,  the  mortgaged  premises,  mentioned  and 
described  in  the  complaint,  be  sold  to  satisfy  the  amount 
so  found  due  the  plaintiff.  Afterward,  on  the  8th  day  of 
November,  1871,  the  plaintiff  sold  and  assigned  his  interest 
in  this  decree  to  T.  C.  Collier,  and  on  the  27th  day  of 
December,  1871,  the  mortgaged  property,  mentioned  in  the 
complaint,  was  sold  in  one  parcel  by  the  sheriff  of  said 
county,  to  T.  C.  Collier,  for  the  sum  of  $3,300.  Afterward, 
at  the  May  term,  1872,  of  the  district  court  for  Jefferson 
county,  to  wit,  on  the  16th  day  of  May,  1872,  the  defend- 
ants made  their  motion  to  set  aside  such  sale,  which  motion 
was  overruled,  and  the  defendants  appealed  to  this  court. 

It  will  be  seen  by  an  examination  of  the  record  that 
Rader,  by  virtue  of  his  mortgage,  had  a  lien  upon  certain 
property  belonging  to  defendants  ;  that  Blacker,  by  virtue 
of  his  mortgage,  had  a  lien  upon  certain  other  property, 
and  that  Collier,  by  his  mortgage,  had  a  lien  upon  certain 
other  property  still.  These  mortgages  were  assigned  to 
Rader,  and  he  thereby  held  separate  mortgages  on  separate 
parcels  of  property  to  secure  the  payment  of  separate  and 
distinct  debts  of  different  amounts,  and  due  at  different 


1872.]  RADER  a.  ERVIN.  637 

times  with  different  rates  of  interest.  The  decree  does  not 
ascertain  the  amount  secured  by  each  or  either  of  these 
mortgages,  but  does  ascertain  the  aggregate  amount 
secured  by  all  the  mortgages  taken  together,  and  orders  a 
sale  of  the  mortgaged  premises  to  satisfy  such  amount. 
The  result  of  the  decree  is  to  order  the  sale  of  property  to 
satisfy  mortgages  that  are  not  and  never  were  liens  upon 
the  property  ordered  sold  ;  that  is  to  say,  the  effect  of  the 
decree  is  to  give  to  Rader  a  lien  to  secure  his  debt  upon 
property  not  included  in  his  mortgage,  and  to  give  to  Blacker 
a  lien  for  his  debt  upon  property  not  included  in  his  mort- 
gage, and  to  give  to  Collier  a  lien  upon  the  property  of 
Rader  and  Blacker,  included  in  their  mortgages  but  not 
included  in  the  Collier  mortgage  ;  so  that  Rader  receives  the 
benefit  of  Blacker' s  mortgage,  and  Blacker  of  Rader's,  and 
Collier  of  both  the  others,  and  both  the  others  of  Collier's. 

In  a  word,  the  decree  creates  liens  for  the  parties  where 
they  have  failed  to  do  it  themselves  ;  and  not  only  this,  it 
injures  and  destroys  the  liens  made  by  the  parties,  and  gives 
to  the  subsequent  mortgagee  the  same  security  as  that  of 
the  prior  mortgagee. 

Suppose  the  mortgage  to  Rader  had  been  ample  to  secure 
his  indebtedness,  while  that  to  Collier  had  been  entirely  in- 
sufficient to  secure  the  indebtedness  to  him,  yet  by  the 
decree  Collier  is  made  equal  to  Rader,  and  secures  a  lien 
upon  property  to  which  he  was  and  is  a  perfect  stranger. 

There  is  another  peculiarity  about  this  decree.  It  is  a 
fraud  upon  the  rights  of  redemptioners  under  the  statute. 
The  statute  provides  that  property  of  this  kind  sold,  by  vir- 
tue of  the  foreclosure  of  a  mortgage,  may  be  redeemed  by 
the  judgment  debtor  or  by  his  successor  in  interest,  or  by  a 
creditor  having  a  lien  by  judgment  or  mortgage  on  the 
property  sold,  or  on  some  part  thereof,  subsequent  to  that 
on  which  the  property  was  sold,  and  the  statute  further  pro- 
vides that  the  judgment  debtor  or  redemptioner  may  redeem 
by  paying  the  purchaser  the  amount  of  his  purchase,  with 
twelve  per  cent  thereon  in  addition.  Now  suppose  that  the 
judgment  debtors  desired  to  redeem  the  property  mort- 
gaged to  Rader,  what  amount  shall  be  paid  ? 


638  RADER  v.  EBVIN.  [Aug.  T., 

The  decree  is  silent  as  to  the  amount  due  upon  this  mort- 
gage, and  for  any  thing  that  appears  in  the  decree  there 
may  be  nothing  due,  or  the  full  amount  of  the  decree  may 
have  been  based  upon  this  mortgage. 

Suppose  a  subsequent  mortgagee  upon  the  property  mort- 
gaged to  Rader  desired  to  redeem  the  property  covered  by 
Rader's  mortgage,  for  the  purpose  of  securing  his  own 
debt  ?  He  can  only  redeem  by  paying  $4,819.19,  that  being 
the  amount  found  due  by  the  decree,  and  twelve  per  cent 
penalty  thereon,  while  it  is  a  fact  that  $4,819.10  represents 
the  amount  found  due  not  only  upon  the  Rader  mortgage, 
but  upon  two  other  mortgages  given  to  other  parties,  and 
upon  separate  and  distinct  parcels  of  property. 

The  decree  virtually  prohibits  redemption,  and  thereby 
deprives  the  parties  of  rights  secured  by  the  statute. 

If  it  is  competent  in  any  event  to  join  in  one  decree  sev- 
eral mortgages,  given  to  different  parties,  upon  separate 
and  distinct  parcels  of  property,  to  secure  separate  debts 
of  different  dates  and  amounts  (which  is  a  very  doubtful 
proposition),  the  decree  must  be  so  drawn  as  to  preserve  the 
rights  of  redemptioners  to  each  and  every  parcel  of  prop- 
erty included  in  the  decree.  Mortgages  are  not  made  for 
the  sole  and  exclusive  benefit  of  the  mortgagee.  The  mort- 
gagor has  certain  rights,  and  any  decree  that  deprives  and 
robs  him  of  any  substantial  right  given  by  the  statute  is 
void.,  and  the  decree  in  this  case  is  of  that  character. 

The  complaint  avers  that  Rader  fully  paid  the  notes  upon 
which  he  was  surety,  and  notwithstanding  the  averment  of 
payment,  the  complaint  declares  that  the  full  amount  of  the 
notes  still  remains  due  and  unpaid.  We  conceive  that  the 
averment  should  be,  not  that  there  is  so  much  due  upon  the 
notes,  but  that  Rader  having  paid  the  notes,  the  amount  of 
such  payment  is  due  to  him  as  for  so  much  money  paid, 
laid  out  and  expended  for  defendants.  The  notes  having 
been  fully  paid,  it  cannot  be  said  there  is  any  thing  due 
upon  them,  but  the  amount  paid  is  due  on  account  of  such 
payment. 

The  appellant  maintains  that  the  written  assignments  of 


1872.]  CKEIGHTON  v.  HEKSHFIELD.  63d 

the  mortgages,  mentioned  in  the  complaint,  not  being  under 
seal,  are  therefore  void.  The  objection  is  not  well  taken. 
An  assigment  under  seal  is  not  necessary.  The  mortgage  is 
an  incident  to  the  debt.  The  debt  is  the  principal  thing,  and 
the  mortgage  follows  it  as  a  shadow  does  the  substance. 
The  assignment  of  the  debt  carries  with  it  the  mortgage, 
and  the  rule  is  not  changed  if  the  assignment  is  in  parol. 
An  assignment  of  a  mortgage  without  the  assignment  of  the 
debt  it  was  intended  to  secure  is  a  nullity. 

Interest  upon  the  notes  mentioned  in  the  complaint  should 
be  computed  according  to  the  rule  declared  in  the  case  of 
Collier  v.  Field,  decided  at  this  term. 

The  judgment  of  the  court  below  is  reversed  and  the  cause 

remanded. 

Judgment  reversed. 


CBEIGHTON  et  al.,  appellants,  v.  HERSHFIELD  etal., 

respondents. 

CASK  AFFIRMED.  The  case  of  Gallagher  v.  Jiasey,  ante  ,  457,  holding  that  legal 
and  equitable  causes  cannot  be  blended  together,  affirmed. 

EQUITY — Jury  trial  —  void  decree.  A  decree,  which  is  rendered  upon  the  ver- 
dict of  a  jury  in  an  equitable  action,  that  has  been  tried  as  a  suit  at  common 
law,  is  void. 

EQUITY — jurisdiction  of  courts  under  organic  act.  The  jurisdiction  as  to  law 
and  equity,  of  the  courts  of  the  Territory  created  by  the  organic  act,  are 
as  separate  and  distinct  as  those  that  were  known  and  defined  at  the  time 
of  the  adoption  of  the  constitution. 

EQUITY — actions  at  law  —  trial — jurisdiction.  A  court  has  no  jurisdiction  in 
this  Territory  to  try  a  common-law  action  as  a  suit  in  equity;  and  it  can- 
not try  an  equitable  action  as  an  action  at  common  law. 

EQUITY — foreclosure  of  mortgage  —  personal  judgment.  In  an  equitable  action 
to  foreclose  a  mortgage,  a  court  cannot  render  a  personal  judgment  against 
the  mortgagors,  and  decree  a  sale  of  the  mortgaged  premises  to  satisfy  such 
judgment. 

JUDGMENT — jurisdiction.  The  judgment  of  a  court  that  exceeds  its  jurisdic- 
tion is  void. 

UNDERTAKING  ON  APPEAL  —  void  judgment  for  deficiency.  An  action  for  the 
non-payment  of  a  judgment  cannot  be  brought  upon  an  undertaking  on 
appeal,  providing  for  the  payment  of  any  deficiency  arising  upon  the  ealo 
of  mortgaged  premises,  if  no  judgment  for  such  deficiency  was  rendered 
in  the  original  suit. 


640  CREIGHTON  «.  HEESHFIELD.  [Aug.  T., 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THIS  case  was  before  the  court  in  December,  1868,  ante,  66. 

In  November,  1870,  the  court,  SYMES,  J.,  rendered  a  judg- 
ment in  favor  of  Creighton  et  al.,  plaintiffs,  for  $4,400.  The 
court,  WADE,  J.,  sustained  the  motion  of  Hershfield  et  al., 
defendants,  for  a  new  trial  in  December,  1871,  and  plaintiffs 
appealed.  The  facts  are  stated  in  the  opinion. 

E.  W.  &  J.  K.  TOOLE,  for  appellants. 

Respondents  were  intervenors  in  the  original  suit  of 
appellants'  assignors.  Griffith  et  al.  v.  Hermann  et  al.  Re- 
spondents appealed  from  the  decree  therein  and  executed 
the  undertaking  sued  on.  The  decree  was  in  accordance  with 
the  old  chancery  practice.  The  bond  subserved  its  purpose, 
and  stayed  the  sale  of  the  mortgaged  premises  and  secured 
a  hearing  in  the  appellate  court.  The  decree  was  sustained 
by  the  supreme  court  and  became  the  law  of  the  case  until 
reversed  by  some  competent  tribunal.  This  decree  is  in  full 
force  until  reversed,  and  cannot  be  attacked  in  this  action 
or  collaterally.  The  undertaking  speaks  for  itself  and  there 
was  a  consideration  to  support  it.  Lomme  v.  Sweeney,  ante, 
584. 

The  bond  provides  for  the  payment  of  the  deficiency  after 
a  sale  under  the  decree,  which  was  affirmed,  and  not  for  any 
judgment  that  may  be  docketed.  The  bondsmen  have  noth- 
ing to  do  with  the  clerk's  duty  to  docket  a  judgment  for 
deficiency  on  the  coming  in  of  the  sheriff's  return.  It  is  not 
one  of  the  conditions  of  their  bond.  The  bondsmen  are  lia- 
ble under  the  statute,  and  their  undertaking  upon  a  sale  of 
the  property  under  the  decree,  when  the  amount  of  the 
deficiency  is  ascertained.  The  decree,  sheriff's  return,  sale, 
etc.,  were  made  before  this  suit  was  commenced. 

If  the  statute  prevails,  respondents  cannot  escape  tht 
liability  fixed  by  the  decree,  sale,  bond  and  judgment.  If 
the  statute  does  not  prevail,  it  is  a  bonrl  executed  by  princi- 
pals and  sureties,  and  subserved  its  purpose  on  appeal. 
Respondents  are  bound  by  the  conditions  of  their  bond.  The 


1872.]  CREIGHTON  v.  HEBSHFIELD.  641 

legislature  has  properly  provided  for  the  giving  of  under- 
takings on  appeal.     Civ.  Prac.  Act  1867,  §§  202,  336. 

CHUMASERO  &  CHADWICK,  for  respondents. 

The  decree  in  the  case,  in  which  the  undertaking  sued  on 
was  given,  blended  law  and  equity  in  the  same  proceeding. 
The  relief  demanded  was  a  personal  judgment  and  a  sale  of 
mortgaged  property.  The  case  was  tried  by  a  jury  and  a 
general  verdict  was  rendered.  No  j  udgment  for  any  deficiency 
was  ever  entered  or  asked  for.  The  trial  was  conducted  as 
a  trial  at  common  law,  and  the  decree  was  entered  thereon. 
The  decree  was,  therefore,  void.  DunpJiy  v.  Kleinschmidt, 
11  Wall.  610  ;  Noonan  v.  Lee,  2  Black,  499  ;  Orchard 
v.  Hughes,  1  Wall.  77  ;  Fenn  v.  Holme,  21  How.  (U.  S.) 
484. 

No  action  can  be  maintained  on  a  bond  given  on  appeal 
from  a  void  decree.  When  a  court  acts  without  authority, 
its  judgments  are  void.  Elliott  v.  Pier  sol,  1  Pet.  340  ; 
Hollingsworth  v.  Barbour,  4  id.  471. 

A  void  judgment  is  not  made  valid  by  an  affirmance  on 
ground  not  affecting  its  validity.  Brightly 's  Dig.  505,  §§ 
78,  79,  82,  and  cases  cited. 

The  jurisdiction  of  any  court  may  be  inquired  into  by 
every  court,  where  the  proceedings  of  the  former  are  relied 
on  and  brought  before  the  latter  by  the  party  claiming  the 
benefit  of  such  proceedings.  Chemung  C.  B.  v.  Judson,  4 
JSeld.  254  ;  Brightly 's  Dig.  505,  §  77,  and  cases  cited. 

Where  it  is  manifest  on  the  record  that  a  court  has  ex- 
ceeded its  jurisdiction,  the  judgment  is  void.  21  Barb.  9. 

The  bond  sued  on  contains  a  provision  not  required  by 
the  statutes.  If  more  be  added  to  the  condition  of  a  bond 
prescribed  by  statute  than  the  statute  requires,  no  breach 
can  be  assigned  on  such  part  of  the  condition.  Bright- 
ly 's  Dig.  104,  and  cases  cited. 

WADE,  C.  J.     This  cause  comes  into  this  court  on  appeal 
from  an  order  in  the  court  below,  granting  a  new  trial.    The 
record  discloses  the  following  state  of  facts:    Some  time 
VOL.  I  —  81. 


642  CBEIGHTON  v.  HERSHFIELD.  [Aug.  T., 

prior  to  the  13th  day  of  May,  1868,  Joseph  Griffith  and 
William  Thompson  commenced  an  action,  in  the  district 
court  for  the  third  district,  against  John  Hermann  and  Solo- 
mon Star,  to  foreclose  a  certain  mortgage,  given  by  said 
Hermann  and  Star  to  said  Griffith  and  Thompson.  The  de- 
fendants, Lewis  H.  Hershfield  and  A.  Hanaur,  having  a 
mortgage  against  the  same  parties  and  upon  the  same  prop- 
erty, and  claiming  priority  over  Griffith  and  Thompson, 
were  made  defendants  in  said  action,  and  permitted  to  set 
up  their  claim  of  priority.  The  cause  was  tried  and  sub- 
mitted to  a  jury,  upon  the  evidence  and  instructions  from 
the  court,  and  the  jury,  having  found  that  the  Griffith  and 
Thompson  mortgage  was  a  prior  lien  to  that  of  Hershfield 
and  Hanaur,  and  having  found  a  general  verdict  for  the 
plaintiffs  for  the  amount  of  their  claim,  thereupon  the  court 
rendered  a  personal  judgment  upon  such  verdict  against 
said  Hermann  and  Star,  for  the  amount  of  plaintiffs'  debt 
and  costs,  and,  in  default  of  payment,  ordered  a  sale  of  the 
mortgaged  premises,  directing  that  the  proceeds  of  such  sale 
be  applied  first  to  the  payment  of  Griffith  and  Thompson, 
and  the  balance,  if  any,  to  the  payment  of  the  claim  of 
Hershfield  and  Hanaur.  From  this  decree,  rendered  on  the 
13th  day  of  May,  1868,  the  defendants,  Hershfield  and 
Hanaur,  appealed  to  the  supreme  court  of  the  Territory, 
and  executed  a  bond  for  such  appeal,  in  pursuance  of  the 
statute.  The  case  was  tried  in  the  supreme  court,  and  the 
judgment  below,  having  been  modified  as  to  the  amount  of 
interest  included  in  the  judgment,  was  affirmed. 

The  plaintiffs,  Griffith  and  Thompson,  having  assigned 
the  undertaking,  given  on  appeal  to  these  plaintiffs,  they, 
on  the  21st  day  of  June,  1870,  commenced  a  suit  thereon  to 
recover  the  amount  of  the  judgment  rendered  as  aforesaid, 
less  the  amount  received  from  the  sale  of  said  mortgaged 
premises.  The  defendants,  Hershfield  and  Hanaur,  appeared 
and  defended  in  said  action,  and  in  their  answer  set  out  the 
record  in  the  original  suit,  wherein  it  appeared  that  said 
action,  being  a  suit  to  foreclose  a  mortgage  and  to  adjust 
priorities  of  liens,  Avas  submitted  to  a  jury,  and  a  g 


1872.]  CREIGHTON  v.  HERSHFIELD.  643 

verdict  rendered  therein,  upon  which  verdict  the  court  ren- 
dered a  personal  judgment  against  the  defendants,  and 
ordered  a  sale  of  the  mortgaged  premises  ;  and  the  jury, 
having  found  plaintiffs'  mortgage  to  be  a  prior  lien  to  that 
of  defendants,  Hershfield  and  Hanaur,  the  court  directed 
and  ordered  the  proceeds  of  such  sale  to  be  applied  accord- 
ingly. That  part  of  the  answer  setting  up  said  judgment 
and  decree  having,  on  motion,  been  stricken  from  said  answer, 
the  cause  was,  by  consent  of  parties,  submitted  to  the  court, 
sitting  without  a  jury. 

The  court  made  a  finding  of  facts  and  conclusions  of  law, 
and  thereupon  rendered  judgment  for  plaintiffs. 

Afterward,  at  the  December  term,  1871,  of  said  court,  the 
statement  having  been  settled,  the  defendants  submitted  a 
motion  for  a  new  trial,  on  consideration  whereof  the  same 
was  sustained,  and  a  new  trial  granted,  and  from  the  order 
granting  a  new  trial  the  plaintiffs  appeal  to  this  court. 

The  solution  of  one  question  ought  to  determine  this  case. 
The  suit  of  Griffith  and  Thompson  v.  Hermann  and  Star  was 
an  equitable  action  to  foreclose  a  mortgage  and  adjust  prior- 
ity of  liens,  and  regularly  the  chancery  jurisdiction  of  the 
court  would  have  been  invoked.  The  case  was,  in  fact, 
tried  as  a  common-law  action  to  a  jury,  and  the  decree  was 
rendered  upon  the  verdict,  and  not  upon  the  facts  founded 
by  the  chancellor. 

Did  such  action  render  the  judgment  void,  or  was  it  sim- 
ply an  irregularity  that  did  not  affect  its  validity  ? 

We  have  already  decided  in  the  case  of  Gallagher  et  al, 
v.  Basey  et  al.,  ante,  457,  that  legal  and  equitable  causes 
of  action  cannot  be  joined  in  one  suit ;  neither  can  an  equi- 
table defense  be  made  to  a  legal  cause  of  action,  and  it  may 
be  well  in  determining  the  question  at  bar  to  ascertain  the 
reasons  for  this  decision.  By  the  organic  act,  section  9, 
the  supreme  and  district  courts  are  clothed  with  chancery 
MS  well  as  common-law  jurisdiction,  and  in  interpreting 
i  his  language.,  we  may  safely  recur  to  decisions  of  the 
federal  courts,  wherein  the  meaning  of  section  2,  article  3 
of  the  constitution,  in  which  it  is  declared  "that  thejudi- 


944  CREIGHION  v.  HERSHFIELD.          [Aug.  T., 

cial  power  of  the  United  States  shall  extend  to  all  cases  in 
law  and  equity  arising  under  the  constitution,  the  laws  of 
the  United  States,"  etc.,  is  judicially  settled  and  determined; 
for  the  federal  courts  in  the  States,  by  this  language  of  the 
constitution,  are  given  the  same  jurisdiction  as  to  law  and 
equity,  as  are  the  supreme  and  district  courts  of  this  Terri- 
tory by  the  organic  act. 

We  believe  that  an  examination  of  these  decisions  will 
show  that  this  language  of  the  constitution  and  of  our 
organic  act,  was  intended  to  and  did  confer  upon  the  courts 
therein  named,  chancery  as  well  as  common-law  jurisdic- 
tion, as  these  two  jurisdictions  were  known  and  defined  at 
the  time  of  the  adoption  of  the  constitution,  and  that  the 
jurisdictions  thus  conferred  are  entirely  separate  and  dis- 
tinct from  each  other  ;  that  they  cannot  be  blended  together 
in  this  Territory  ;  and  that  if  a  common-law  action  is  tried 
as  a  suit  in  chancery,  or  an  equitable  action  as  an  action  at 
law,  in  either  case  the  proceedings  are  void,  for  the  reason 
that  in  either  case  the  court  would  act  within  its  jurisdiction 
or  authority,  and  its  act  would  be  a  nullity. 

In  the  case  of  Fenn  v.  Holme,  21  How.  484,  the  court 
say  :  "  By  the  constitution  of  the  United  States,  and  by  the 
acts  of  congress  organizing  the  federal  courts,  and  defining 
and  investing  the  jurisdiction  of  these  tribunals,  the  distinc- 
tion between  common-law  and  equity  jurisdiction  has  been 
explicitly  and  carefully  defined  and  established."  "In the 
act  of  congress  to  establish  the  judicial  courts  of  the  United 
States  this  distribution  of  law  and  equity  powers  is  fre- 
quently referred  to,  and  by  the  sixteenth  section  of  that  act, 
as  if  to  place  the  distinction  between  these  powers  beyond 
misapprehension,  it  is  provided  *  that  suits  in  equity  shall 
not  be  maintained  in  either  of  the  courts  of  the  United 
States  in  any  case  where  plain,  adequate  and  complete 
remedy  may  be  had  at  law,'  at  the  same  time  affirming  and 
separating  the  two  classes  or  sources  of  judicial  authority. 
In  every  instance  in  which  this  court  has  expounded  the 
phrases,  proceedings  at  common  law  and  proceedings  in 
equity,  with  reference  to  the  exercise  of  the  judicial  power 


1872.]  CREIGHTON  t>.  HEBSHFIELD.  646 

of  the  courts  of  the  United  States,  they  will  be  found  to 
have  interpreted  the  former  as  signifying  the  application  of 
the  definitions  and  principles  and  rules  of  the  common  law 
to  rights  and  obligations  essentially  legal ;  and  the  latter,  as 
meaning  the  administration  with  reference  to  equitable,  as 
contradistinguished  from  legal  rights  of  the  equity  law,  as 
defined  and  enforced  by  the  court  of  chancery  of  England.'' 

In  the  case  of  Parsons  v.  Bedford  et  al.,  3  Pot.  446,  the 
court  holds  this  language  :  "  The  constitution  had  declared 
in  the  third  article,  'that  the  judicial  power  shall  extend  to 
all  cases  in  law  and  equity  arising  under  this  constitution, 
is  the  laws  of  the  United  States,'  etc.  It  is  well  known 
that  in  civil  causes,  in  courts  of  equity  and  admiralty,  juries 
do  not  intervene,  and  that  courts  of  equity  use  the  trial  by 
jury  only  in  extraordinary  cases,  to  inform  the  conscience 
of  the  court.  When,  therefore,  we  find  that  the  amend- 
ment (7th  amendment)  requires  that  the  right  of  trial  by 
jury  shall  be  preserved  in  suits  at  common  law,  the  natural 
conclusion  is  that  the  distinction  was  present  in  the  minds 
of  the  framers  of  the  amendment.  By  common  law  they 
meant  what  the  constitution  in  the  third  article  denom- 
inated, '  LAW,'  not  merely  suits  which  the  common  law 
recognized  among  its  old  and  settled  proceedings,  but  suits 
in  which  legal  rights  were  to  be  ascertained  and  determined 
in  contradistinction  to  those  where  equitable  rights  alone 
were  recognized  and  equitable  rights  administered." 

In  the  case  of  Bennett  v.  Butter  worth,  11  How.  669,  the 
chief  justice  of  the  United  States  uses  this  language  : 

"The  common  law  has  been  adopted  in  Texas,  but  the 
forms  and  rules  of  pleading  in  common-law  cases  have  been 
abolished,  and  the  parties  are  at  liberty  to  set  out  their 
respective  claims  and  defenses  in  any  form  that  will  bring 
them  before  the  court.  And  as  there  is  no  distinction  in  its 
courts  between  cases  at  law  and  equity,  it  lias  been  insisted 
in  this  case,  on  behalf  of  the  defendant  in  error,  that  this 
court  may  regard  the  plaintiffs'  petition  either  as  a  dec- 
laration at  law  or  as  a  bill  inequity.  Whatever  may  be  the 
laws  of  Texas  in  this  respect  they  do  not  govern  the  pro- 


846  CREIGHTON  v.  HEBSHFIBLD.  [Aug.  T., 

ceedings  in  the  courts  of  the  United  States.  And  although 
the  forms  of  proceeding  and  practice  in  the  State  courts 
have  been  adopted  in  the  district  court,  yet  the  adop- 
tion of  the  State  practice  must  not  be  understood  as 
confounding  the  principles  of  law  and  equity,  nor  as 
authorizing  legal  and  equitable  claims  to  be  blended  to- 
gether in  one  suit-  The  constitution  of  the  United  States, 
in  creating  and  denning  the  judicial  power  of  the  general 
government,  establishes  this  distinction  between  law  and 
equity,  and  a  party  who  claims  a  legal  title  must  proceed 
at  law,  and  may  undoubtedly  proceed  according  to  the 
forms  of  practice  in  such  cases  in  the  State  court.  But  if 
the  claim  be  an  equitable  one  he  must  proceed  according  to 
the  rules  which  this  court  has  prescribed,  regulating  pro- 
ceedings in  equity  in  the  courts  of  the  United  States." 

These  authorities,  it  seems  to  us,  ought  forever  to  settle 
the  question  as  to  the  blending  of  law  and  equity  in  one 
action  in  this  Territory,  while  our  organic  act  remains 
unchanged,  and  applying  the  principles  herein  enunciated 
to  the  case  under  consideration,  we  are  compelled  to  say  it 
was  error  in  the  court  below  to  render  a  personal  j  ndgment 
against  defendants  in  the  first  instance,  and  then  to  decree 
a  sale  of  the  mortgaged  premises  to  satisfy  such  judgment, 
thus  granting  both  legal  and  equitable  relief  in  the  same  suit. 

And  we  deduce  from  the  foregoing  authorities,  that  in 
determining  whether  a  case  shall  be  tried  as  at  common  law 
or  in  chancery,  we  simply  determine  a  question  of  jurisdic- 
tion, and  we  say,  in  the  light  of  these  authorities,  that  a 
court  having  common-law  as  well  as  equity  jurisdiction,  has 
no  authority  to  try  an  equity  case  as  a  case  at  common  law, 
neither  has  it  authority  or  jurisdiction  to  try  a  case  at  law 
as  a  suit  in  chancery. 

In  a  suit  in  chancery  the  decree  must  emanate  from  the 
chancellor.  He  must  find  the  facts.  He  alone  is  responsi- 
ble, and  the  decree  must  proceed  directly  from  him;  while  in 
an  action  at  law  the  jury  find  the  facts,  and  the  court  has  no 
jurisdiction  whatever  over  the  facts. 

The  suit  at  bar  was  an  equitable  action  to  foreclose  a  mort- 


1872.]  CREIGHTON  v.  HERSHFI  UK  64? 

gage  on  certain  real  property,  and  to  ascertain  the  priority 
of  liens  between  the  several  mortgages.  There  were  no  facts 
found  in  the  case  by  either  court  or  jury.  There  was  a  gen- 
eral verdict  for  plaintiffs,  and  a  personal  judgment  against 
defendants,  and  a  decree  ordering  a  sale  of  the  premises 
rendered  thereon.  The  case  was  tried  as  a  simple  common- 
law  action.  The  testimony  was  produced  before  the  jury, 
instructions  given  by  the  court,  verdict  for  plaintiff  and 
judgment  and  decree  thereon. 

Suppose  this  had  been  a  suit  at  law,  for  instance,  to 
recover  damages  for  breach  of  contract,  and  the  court  had 
denied  the  plaintiff  a  jury  trial,  and  had  ordered  the  trial 
to  the  court,  and  had  rendered  judgment  in  such  suit ;  this 
would  have  been  manifest  error,  and  the  judgment  void,  for 
the  reason  that  the  court  has  not  jurisdiction  or  authority  to 
try  such  a  case  without  the  intervention  of  a  jury.  And  so, 
for  the  same  reason,  suppose  this  had  been  an  equitable 
action,  for  example,  to  compel  the  specific  performance  of 
a  contract,  or  to  correct  an  accident  or  mistake  where  there 
was  no  adequate  remedy  at  law,  and  the  court  had  refused  to 
try  the  case  as  a  chancellor,  finding  the  facts  and  rendering 
a  decree  thereon,  but  had  ordered  the  case  to  be  tried  to  a 
jury  and  had  directed  them  to  find  a  general  verdict,  mak- 
ing the  jury  alone  responsible  for  the  finding  of  fact.  Such 
verdict  and  such  finding  would  be  a  nullity,  for  the  reason 
that  the  court  has  not  jurisdiction  or  authority  to  try  such 
a  case  to  a  jury. 

In  equity  causes,  where  the  chancery  jurisdiction  of  the 
court  is  rightfully  invoked,  the  judge,  sitting  as  chancellor, 
has  the  sole  and  exclusive  jurisdiction  to  find  the  facts  and 
to  make  the  decree,  and  this  authority  cannot  be  delegated 
to  the  jury,  only  in  such  a  manner  as  to  make  the  chancel- 
lor alone  responsible  for  the  facts.  This  is  an  elementary 
principle  in  equity  jurisprudence,  and  is  one  of  its  distin- 
guishing features,  whereas  in  an  action  at  law  the  jury  has 
the  sole  and  exclusive  jurisdiction  over  the  facts,  and  the 
court  simply  renders  judgment  upon  the  facts  found.  W»> 
arrive  at  this  conclusion:  that  an  equity  case  wherein  tin- 


048  CBEIGHTON  v.  HEESHFIELD.          [Aug.  T., 

chancery  jurisdiction  of  tlie  court  is  properly  called  into 
requisition,  cannot  be  tried  as  a  common-law  action  to  a 
jury,  and  if  so  tried  and  prosecuted  to  judgment  and  decree, 
such  judgment  and  decree  is  void. 

This  view  of  the  law  is  clearly  presented  in  the  case  of 
Dunpliy  v.  KleinsmUTi,  11  Wall.  614.  In  that  case  the 
court  say  :  "  This  case  was  clearly  a  case  of  chancery  juris- 
diction and  one  necessarily  requiring  equitable  as  distin- 
guished from  legal  relief.  The  property,  according  to  the 
charge  of  the  complaint,  had  been  put  beyond  the  reach  of 
the  ordinary  process  of  the  law.  It  had  been  disposed  of 
by  the  assistance  and  through  the  co-operation  of  Dunphy 
in  such  a  manner  that  the  judgment  creditors  could  not  find 
it  to  satisfy  their  claims,  or  if  found,  it  was  held  by  Dun- 
phy under  cover  of  an  assignment,  which  prima facie  gave 
him  the  legal  title."  "  In  a  country  or  territory  where  the 
systems  of  common  law  and  chancery  both  substantially  pre- 
vail, it  is  perfectly  clear  that  chancery  only  could  give  ade- 
quate relief  in  such  a  case.  And  then  the  case  was  insti- 
tuted and  the  pleadings  were  framed  strictly  in  accordance 
with  this  view.  The  bill  is  strictly  a  bill  in  chancery  pray 
ing  for  equitable  relief.  Now  it  is  perfectly  obvious  that, 
with  the  exception  of  the  verdict  being  rendered  by  nine 
jurors,  the  trial  was  altogether  conducted  as  a  trial  at  com- 
mon law,  and  that  the  decree  was  rendered  on  the  verdict 
precisely  as  a  judgment  is  rendered  on  a  verdict  at  common 
law.  Tills  was  clearly  an  error" 

"The  case  being  a  chancery  case,  and  being  instituted  as 
such,  should  have  been  tried  as  a  chancery  case,  by  the 
modes  of  proceeding  known  to  courts  of  equity.  In  those 
courts,  the  judge  or  chancellor  is  responsible  for  the  decree. 
If  he  refers  any  questions  of  fact  to  the  jury,  as  he  may  do 
by  a  feigned  issue,  he  is  still  to  be  satisfied  in  his  own  con- 
science that  the  finding  is  correct,  and  the  decree  must  be 
made  as  the  result  of  his  own  judgment,  aided,  it  is  true, 
by  the  finding  of  the  jury.  Here,  the  judgment  is  pro- 
nounced as  the  mere  conclusion  of  law,  upon  the  facts 
found  by  the  jury." 


1872.]  CBEIGHTON  ».  HERSHFIELD.  649 

If  we  should  substitute  the  names  of  the  parties  to  the 
suit  we  are  considering,  the  foregoing  language  would 
apply  with  equal  force.  It  is  perfectly  obvious  in  the  case 
under  consideration,  as  it  was  in  the  Dunphy  and  Klein- 
smith  case,  that  the  trial  was,  altogether,  conducted  as  a 
trial  at  common  law,  and  that  the  decree  was  rendered  on 
the  verdict  precisely  as  a  judgment  is  rendered  on  a  verdict 
at  common  law.  And  this  being  a  chancery  case,  and  ad- 
mitted to  be  such,  as  the  Dunphy  case  was,  and  being  insti- 
tuted as  such,  should  have  been  tried  as  a  chancery  case,  by 
the  modes  of  proceeding  known  to  courts  of  equity.  And 
if  the  failure  to  try  the  Dunphy  and  Kleinsmith  case, 
according  to  the  modes  of  the  chancery  practice,  was  error, 
the  same  failure  in  this  case  was  equally  erroneous. 

In  the  case  referred  to,  the  court  say,  that  its  trial  as  a 
common-law  action  was  clearly  an  error.  This  language 
must  be  taken  to  mean,  that  the  judgment  and  decree,  in 
that  case,  were  null  and  void,  for  they  reverse  the  case  and 
send  it  back  for  a  new  trial,  because  of  this  error  ;  whereas, 
if  they  had  considered  this  error  as  a  mere  irregularity,  not 
going  to  the  validity  of  the  judgment,  they  would  have 
affirmed  it  in  a  modified  form,  so  as  to  cure  the  irregularity. 
An  error  or  irregularity,  going  to  the  jurisdiction  of  the 
court  that  will  reverse  a  judgment,  is  such  an  error  that 
renders  such  judgment  void. 

Why  was  the  judgment  and  decree  in  the  Dunphy  and 
Kleinsmith  case  erroneous  and  void?  Simply  because  the 
court  exceeded  its  jurisdiction,  in  trying  an  equity  case  as 
an  action  at  common  law.  It  is  purely  a  question  of  juris- 
diction, and  as  clearly  defined  as  the  law,  which  prohibits 
a  justice  of  the  peace  from  trying  the  title  to  real  property. 

Where  it  is  manifest  on  the  record  that  a  court  lias  ex- 
ceeded its  jurisdiction,  the  payment  is  simply  void.  21  Barb. 
9  ;  16  U.  S.  Digest,  169,  §8. 

To  uphold  the  judgment  and  decree  in  the  case  of  Griffith 
&  Thompson  v.  Hermann  &  Star,  we  must,  at  one  blow, 
abolish  all  distinction  in  the  modes  of  trial  in  actions  at  la\v 
and  suits  in  equity,  and  we  must  say  that  these  two  juris 
VOL.  I. —82. 


650  CKEIGHTON  t>.  HERSHFIELD.  [Aug.  T., 

dictions,  so  carefully  preserved  in  the  constitution,  in  our 
organic  act,  and  in  the  numerous  decisions  of  the  supreme 
court  of  the  United  States,  are  entirely  meaningless,  and 
that  it  is  equally  competent  to  try  an  equity,  as  a  common 
law  case  to  a  jury.  We  must  say,  further,  that  our  district 
courts  have  no  distinctive  equity  jurisdiction  ;  that  the  evi- 
dence should  not  be  preserved  in  a  chancery  suit ;  that  the 
jury,  and  not  the  chancellor,  is  responsible  for  decrees  in 
chancery  ;  that  such  decree  can  be  rendered  upon  a  general 
verdict,  in  the  absence  of  any  finding  of  fact,  and  that  the 
statute  of  the  Territory,  and  the  rule  of  the  supreme  court 
of  the  United  States,  in  suits  to  foreclose  mortgages  requir- 
ing judgment  for  deficiency  to  be  entered  after  the  coming 
of  the  return  of  sale,  showing  that  the  full  amount  of  the 
claim  has  not  been  made  by  the  sale,  are  mere  nullities  and 
of  no  force  or  authority  whatever.  We  are  not  prepared  to 
thus  overturn  the  very  source  and  foundation  of  our  juris- 
prudence. 

The  judgment  and  decree  in  the  case  of  Griffith  & 
Thompson  v.  Hermann  &  Star  being  void,  the  undertak- 
ing, given  on  appeal  from  the  same,  is  also  void,  and  cannot 
furnish  the  foundation  for  a  right  of  recovery  in  this  action. 

The  undertaking  sued  on  is  in  proper  form,  and  provides 
for  the  payment  of  any  deficiency  arising  upon  the  sale  of 
the  mortgaged  premises,  in  pursuance  of  the  statute  ;  but  no 
judgment  for  deficiency  is  asked  for  or  given,  as  required 
by  the  rule  of  the  supreme  court  of  the  United  States,  and 
the  statute  of  this  Territory,  in  suits  to  foreclose  mortgages, 
so  that  the  bond  provides  for  a  condition  not  contained  in 
the  case,  and  no  breach  of  the  bond  or  undertaking  can  be 
assigned  for  non-payment  of  the  judgment,  unless  we  say 
that  the  personal  judgment  for  the  full  amount  of  the  mort- 
gage, rendered  upon  the  verdict  of  a  jury,  is  a  judgment 
for  deficiency,  as  contemplated  and  required  by  the  statute 
and  the  rule  aforesaid.  We  are  not  called  upon  to  create  a 
condition,  and  then  to  assign  a  breach  of  the  undertaking 
for  a  violation  thereof. 

If  the  case  had  been  tried  to  the  court,  sitting  as  a  clian- 


1872.]  THORP  v.  FREED.  663 

cellor,  and  if  the  decree  had  been  based  upon  facts  found 
by  the  court  or  judge,  and,  through  inadvertence,  accident 
or  mistake,  a  personal  judgment  had  been  rendered  for  the 
full  amount  of  the  money  due  on  the  mortgage,  undoubtedly 
this  court  could  correct  such  mistake  or  irregularity,  and 
render  a  judgment  for  deficiency ;  but  the  judgment,  being 
void  from  its  inception,  we  cannot  give  it  vitality  and  then 
correct  an  irregularity  thereon. 

The  order  granting  a  new  trial  was  properly  made,  and 
the  judgment  below  is  affirmed. 

Judgment  affirmed. 


THORP  et  al.,  appellants,  •».  FREED  et  al.,  respondents. 

PRACTICE  —  assignment  of  errors.  This  court  will  not  review  errors  which  do 
not  point  out  wherein  the  evidence  is  insufficient  to  support  the  findings  of 
fact. 

PRACTICE  —  opinion — findings.  The  opinion  of  the  chancellor  in  an  equitable 
action  is  not  a  finding  of  facts. 

PRACTICE  —  reasons  for  judgment.  A  cause  will  not  be  reversed  because  the 
court  rendered  its  judgment  for  erroneous  reasons. 

WA.TKK  —  appropriation  for  irrigation  —  riparian  proprietors  —  laws  of  Territory 
and  congress  relating  to  water  rights  —  local  customs.  WADE,  C.  J.,  and 
KNOWLES,  J.,  have  discussed  these  questions  in  their  opinions  and  arrived 
at  different  conclusions.  MURPHY,  J.,  could  not  act  as  a  member  of  the 
court,  and  did  not  express  any  opinion  at  the  time  the  case  was  examined. 
There  is  no  opinion  of  the  court  and  a  syllabus  of  these  opinions  is  omitted 
by  the  reporter. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  court,  WADE,  J.,  rendered  the  decision  in  this  case. 
The  facts  are  stated  in  the  opinions. 

CHUM  ASERO  &  CHAD  WICK  and  E.W.  TOOLE,  for  appellants. 
Counsel  filed  an  argument  containing  authorities  on  the 
questions  on  which  there  was  no  opinion  of  the  court. 

SHOBER  &  LOWRY, W.  F.  SANDERS  and  B.  LAWRENCE,  for 
respondents. 


652  THORP  v.  FREED.  [Aug.  T. 

[The  reporter  has  omitted  that  part  of  the  argument  relating 
to  the  water  questions.] 

There  are  no  written  findings  in  this  case  and  none  were 
demanded  by  appellants.  Civ.  Prac.  Act,  §  180  ;  Sanchez 
v.  McMahon,  35  Cal.  225. 

No  defects  or  specifications  of  errors  are  pointed  out,  as 
required  by  statute.  Hidden  v.  Jordan,  28  Cal.  302  ;  Beans 
v.  Emanuelli,  36  id.  120. 

Findings  must  be  excepted  to  specially  and  exception 
must  be  saved  in  the  court  below.  Hurlburt  v.  Jones,  25 
Cal.  225  ;  Warner  v.  Holman,  24  id.  228. 

The  opinion  of  the  court  below  cannot  be  treated  as  a 
finding.  3  Estee's  PI.  432,  and  cases  cited. 

CHUMASERO  &  CHADWICK  and  E.  W.  TOOLE,  for  appel- 
lants, in  reply. 

This  is  an  equity  case,  governed  by  the  rules  of  the 
supreme  court  of  the  United  States  and  chancery  practice. 
It  is  unnecessary  to  specify  errors,  as  when  a  case  at  law  is 
appealed.  2  Abb.  (U.  S.)  Prac.  228  ;  2  Dan.  Ch.  Prac.  1484  ; 
Wiscart  v.  Dauchy,  3  Ball.  321 ;  The  San  Pedro,  2  Wheat. 
132. 

The  civil  practice  act  and  California  decisions  under  the 
same  are  not  applicable  to  this  case.  This  court  must  enter 
into  a  re-examination  and  rehearing  of  the  entire  case  upon 
the  record. 

KNOWLES,  J.  This  case,  in  some  respects,  is  anomalous. 
The  plaintiffs  assert  a  right  to  the  waters  of  Prickley  Pear 
creek,  as  appropriators  thereof  for  the  purposes  of  irriga- 
tion, and  complain  that  the  defendants  have  diverted  some 
of  the  waters  of  said  creek,  and  prevented  the  same  from 
flowing  into  plaintiffs'  irrigating  ditches,  and  ask  for  an 
injunction  to  prevent  the  continuance  of  this  breach  of  their 
rights. 

The  question  of  the  right,  in  this  Territory,  to  appropriate 
water  for  the  purposes  of  irrigation,  is  one  of  great  import- 
ance and  general  interest,  and  which,  perhaps,  ought  to  be 


1872.]  THORP  t>.  FREED.  65b 

determined  at  the  earliest  day  possible.  Undoubtedly,  this 
cause  might  be  decided,  in  view  of  the  manner  in  which 
it  is  presented  to  this  court,  without  considering  this  ques- 
tion ;  but,  as  it  was  presented  in  the  trial,  in  the  court 
below,  and  is  ably  discussed  in  the  arguments  of  both  appel- 
lants and  respondents,  we  feel  called  upon  to  express  our 
views  concerning  it. 

The  common-law  rule  was,  that  he  who  owned  land  upon 
the  banks  of  a  running  stream,  or  land  over  which  the  same 
flowed,  had  a  right  to  have  the  waters  thereof  flow  down, 
to  or  over  his  land,  undiminished,  materially,  in  quantity 
or  quality.  The  riparian  proprietor  could  use  the  water 
flowing  past  or  over  his  land  for  domestic  purposes  and  to 
quench  the  thirst  of  man  and  animals  ;  but  no  one  was  per- 
mitted to  divert  water  from  the  channel  where  it  was  accus- 
tomed to  run,  for  the  purposes  of  irrigation.  Certainly  such 
a  diversion  of  water  would  both  diminish  materially  its 
quantity  and  quality.  The  first  legislative  assembly  of  Mon- 
tana Territory  enacted : 

"That  the  common  law  of  England,  so  far  as  the  same  is 
applicable  and  of  a  general  nature,  and  not  in  conflict  with 
the  special  enactments  of  this  Territory,  shall  be  the  law 
and  rule  of  decision,  and  shall  be  considered  as  of  full  force 
until  repealed  by  legislative  authority."  Laws  of  Montana 
for  1864  and  1865,  356. 

The  only  way  that  a  court  can  escape  the  bearing  of  this 
statute  on  this  subject  would  be  to  hold  that  the  common 
law,  upon  the  question  of  riparian  proprietors,  was  either 
inapplicable  or  was  not  of  a  general  nature,  or  was  in  con- 
flict with  some  enactment  of  the  legislative  assembly  of  this 
Territory,  or  of  the  congress  of  the  United  States. 

We  have  running  streams,  upon  whose  banks  people  live 
and  hold  land,  and  this  would  be  sufficient  to  show  its  appli- 
cability. We  do  not  conceive  that  a  court  can  say  that  the 
provisions  of  the  common  law  are  not  for  the  best  interests 
of  this  section  of  country,  and  therefore  inapplicable.  The 
question  of  whether  or  not  a  law  is  for  the  good  of  the 
people  in  our  Territory,  is  a  matter  for  legislative,  and  not 


654  THORP  t>.  FREED.  [Aug.  T. 

judicial,  consideration.  Much  of  the  common  law  of  Eng- 
land pertains  to  the  English  form  of  government,  and  the 
privileges  of  castes,  which  are  not  at  all  applicable  to  our 
form  of  government ;  and  these  are  the  provisions  of  the 
common  law,  I  presume,  the  legislative  assembly  had  in 
view  in  the  enactment  above  referred  to  as  inapplicable.  It 
seems  to  be  contended,  by  the  court  below,  that  the  natural 
wants  of  man,  and  the  physical  and  climatic  conditions  of 
this  Territory,  have  of  necessity  changed  the  common  law 
upon  the  subject  of  riparian  proprietors,  or  that  these  show 
that  that  law  is  inapplicable,  in  part  at  least.  And  it  was 
held  by  the  court  below  that,  in  accordance  with  the  demands 
of  our  section,  the  common  law  was  so  modified  that  any 
one,  living  upon  the  banks  of  a  running  stream,  as  a  riparian 
proprietor,  can  divert  the  waters  thereof,  for  the  purposes 
of  irrigation,  to  the  extent  of  the  land  he  cultivates ;  and 
that  he  who  is  nearest  to  the  source  of  the  stream  shall  have, 
by  virtue  of  his  position,  the  right  to  first  divert  the  waters 
of  the  same,  to  the  exclusion  of  those  below  him  thereon, 
if  necessary  to  irrigate  his  land,  even  though  those  whose 
lands  are  nearer  the  mouth  of  the  stream  should  have  occu- 
pied them  for  years,  and  spent  large  sums  of  money  in 
improving  them  and  making  a  homestead  thereon,  prior  to 
the  fortunate  settler  above  them.  Surely  the  climatic  and 
physical  conditions  of  this  country  cannot  be  such  as  to 
create  a  law  so  at  variance  with  natural  equity  and  so  fatal 
to  the  improvement  and  prosperity  of  our  best  agricultural 
districts.  It  must  be  apparent  to  all  that  the  best  agricul- 
tural lands  in  this  Territory  are  not  at  the  sources  of  the 
streams.  Our  broad  valleys,  as  a  rule,  are  better  adapted 
by  nature  for  settlement  and  agriculture  than  our  narrow 
and  rocky  canons  and  mountain  gorges.  If  we  were  called 
upon  to  say  what  were  the  necessities  of  this  country,  in 
regard  to  the  use  of  water  for  the  purposes  of  irrigation,  we 
should  reply  that  there  was  a  demand  that  water  should  b« 
used  for  that  purpose,  and  that  the  considerations  of  the 
general  welfare  of  the  country  and  the  principles  of  natural 
equity  should  guaranty  to  the  prior  appropriator  of  water 


1872.]  THORP  v.  FREED.  666 

for  such  use  the  first  right  to  the  use  of  the  same,  to  the 
extent  of  his  necessities  for  domestic  purposes,  the  quench- 
ing of  the  thirst  of  himself  or  animals,  and  for  agricultural 
purposes.  We  can  see  no  reason  why,  if  the  common  law 
is  to  be  changed  by  the  considerations  above  named,  it 
should  not  be  changed  to  suit  the  wants  of  the  country  and 
in  accordance  with  the  principles  of  equity.  We  hold,  how- 
ever, that  a  law  that  is  a  part  of  a  system  of  laws  which 
our  legislative  assembly  have  adopted  cannot  be  annulled 
or  varied  by  a  court,  through  any  such  considerations. 

In  the  second  place  the  common-law,  upon  the  subject  of 
riparian  proprietors,  is  of  a  general  nature. 

In  the  third  place,  has  this  law  been  repealed  or  modified 
by  the  act  of  the  legislative  assembly  or  by  act  of  congress  ? 

The  congress  of  the  United  States,  by  an  act  approved  July 
26,  1866,  entitled  "  An  act  granting  the  right  of  way  to  ditch 
and  canal  owners  over  the  public  lands  and  for  other  pur- 
poses," provides  "  that  whenever,  by  priority  of  possession, 
rights  to  the  use  of  water  for  mining,  agricultural,  manu- 
facturing or  other  purposes  have  vested  and  accrued,  and 
the  same  are  recognized  and  acknowledged  by  the  local  cus- 
toms, laws,  and  the  decisions  of  the  courts,  the  possessors 
and  owners  of  such  vested  rights  shall  be  maintained  and 
protected  in  the  same,  and  the  right  of  way  for  the  con- 
struction of  ditches  and  canals  for  the  purposes  aforesaid, 
is  hereby  acknowledged  and  confirmed." 

Tf  the  right  to  the  waters  of  Prickly  Pear  creek  have 
accrued  to  and  become  vested  in  the  plaintiffs  by  priority 
of  possession,  and  the  right  to  the  same  has  been  acknowl- 
edged and  recognized  by  the  customs,  laws,  and  decisions  of 
the  courts  of  this  Territory,  then  there  is  no  doubt  but  that 
the  common-law  doctrine,  in  relation  to  the  rights  of  ripa- 
rian proprietors,  has  been  changed.  It  is  not  denied  in  the 
answer  but  that  the  plaintiffs  have  appropriated  a  portion 
of  the  waters  of  the  said  creek.  The  plaintiffs  must  recover, 
if  at  all,  upon  their  right  of  appropriation.  They  have 
based  their  right  upon  this,  and  not  as  riparian  proprietors. 

Ever  since  the  settlement  of  this  Territory,  it  has  been  the 


656  THORP  v.  FREED.  [Aug.  T., 

custom  of  those  who  settled  themselves  npon  any  portion 
of  the  public  domain,  and  devoted  any  part  thereof  to  the 
purposes  of  agriculture,  to  dig  ditches,  and  turn  out  the 
waters  of  some  stream  to  be  used  to  irrigate  the  same.  This 
right  has  been  generally  recognized  by  our  people.  It  has 
been  universally  conceded  that  this  was  a  necessity  in  agri- 
cultural pursuits.  So  universal  has  been  this  usage  that  1 
do  not  suppose  there  has  been  a  parcel  of  land  to  the  extent 
of  one  acre  cultivated  within  the  bounds  of  this  Territory 
that  has  not  been  irrigated  by  water  diverted  from  some 
running  stream.  Both  plaintiffs  and  defendants  recognize 
this  custom  and  the  necessity  of  the  same.  Both  are 
diverting  water  from  the  Prickly  Pear  creek  for  this  pur- 
pose. If  a  practice  so  universal,  and  which  has  so  long  pre- 
vailed, does  not  establish  a  custom,  it  would  be  most  difficult 
to  do  so.  There  have  been  but  few  disputes  up  to  this  time 
upon  the  subject  of  the  use  of  water  for  the  purposes  of 
irrigation,  and  in  not  one  of  these,  as  far  as  we  are  informed, 
has  the  right  to  devote  water  to  such  a  use  been  denied.  It 
may  safely  be  asserted  the  right  to  appropriate  water  for 
the  purposes  of  agriculture  have  been  recognized  and 
acknowledged  by  the  customs  of  this  Territory. 

In  the  second  place,  has  this  right  been  acknowledged 
and  recognized  by  law  \  The  first  legislative  assembly  of 
this  Territory  passed  an  act  upon  the  subject  of  irrigation. 
The  first  section  of  that  act  is  as  follows : 

"  That  all  persons  who  claim,  own  or  hold  a  possessory 
right  or  title  to  any  land  or  parcel  of  land  within  the  bound- 
ary of  Montana  Territory,  as  defined  in  the  organic  act  of 
this  Territory,  when  those  claims  are  in  the  banks,  margin 
or  neighborhood  of  any  stream  of  water,  creek  or  river,  shall 
be  entitled  to  the  use  of  the  water  of  said  stream,  creek  or 
river  for  the  purpose  of  irrigation,  and  making  said  claim 
available  to  the  full  extent  of  the  soil  for  agricultural 
purposes." 

The  second  section  provides  for  the  right  of  way  for  the 
construction  of  ditches,  for  the  purpose  of  taking  water  out 
of  a  stream,  creek  or  river  for  the  purposes  of  irrigation 
See  Bannack  Stat.  367,  §§  1,  2. 


1872.]  THORP  t>.  FREED.  657 

This  statute  was  in  force  at  the  time  the  plaintiffs  made 
their  appropriation  of  water,  and  at  the  time  the  act  of  con- 
gress above  referred  to  became  a  law.  This  statute,  as  far  as 
it  could,  established  and  recognized  the  right  of  appropria- 
tion of  water  for  agricultural  purposes.  Of  course  it  could 
not  establish  this  right  as  against  the  general  government, 
or  any  person  claiming  thereunder.  But  as  against  any 
other  parties  the  plaintiffs  would  have  the  right  to  the  use 
of  any  water  appropriated  for  that  purpose  if  they  are  prior 
appropriators.  As  far  as  the  legislative  assembly  of  Mon- 
tana had  the  power,  they  repealed  the  common-law  doctrine 
in  regard  to  riparian  proprietors.  If  it  is  claimed  that  this 
statute  does  not  recognize  the  doctrine  of  "prior  in  time, 
prior  in  right,''  the  answer  to  this  is,  that  when  the  law  gives 
a  man  the  right  to  divert  water  from  a  stream  to  irrigate  his 
land  to  the  full  extent  of  the  soil  thereof,  and  in  pursuance 
of  this  law  he  goes  and  digs  a  ditch,  or  constructs  machinery 
for  the  purpose  of  taking  water  from  a  stream  for  this  pur- 
pose at  great  expense,  the  principles  of  equity  come  in  and 
say  that  no  other  man  can  come  in  and  divert  this  water 
away  from  him.  That  he  is  prior  in  time  in  availing  him- 
self of  the  benefits  of  such  a  statute,  and  his  rights  are 
prior  to  any  subsequent  appropriates  It  is  claimed  by  the 
respondents,  and  it  would  appear  was  held  by  the  court 
below,  that  this  statute  had  been  decided  to  be  void  as  in 
conflict  with  the  organic  act  of  this  Territory.  The  decis 
ion  referred  to  did  not  hold  that  the  whole  of  this  statute 
was  void,  but  only  a  portion  of  it.  The  statute  conferred 
upon  certain  officers,  called  commissioners,  the  right  to  appor- 
tion the  water  of  any  creek  "  having  reference  to  the  legal 
rights  of  the  parties."  This  court  held  that  this  conferred 
upon  these  commissioners  the  power  to  determine  what 
were  the  legal  rights  of  the  parties,  that  this  was  a  judicial 
power,  and  that  the  judicial  power  of  this  Territory  was 
vested  in  certain  courts  by  the  organic  act,  and  that  our 
legislative  assembly  had  no  authority  to  confer  any  portion 
of  it  upon  the  commissioners  provided  for  in  that  act.  The 
declaring  of  certain  provisions  of  a  statute  void  will  not. 
VOL.  I.— 83 


658  THOKP  a.  FKEED.  [Aug.  T-> 

certainly  have  the  effect  of  declaring  all  of  the  provisions 
of  a  statute  a  nullity.  One  part  of  a  statute  may  be  good 
and  one  part  bad.  We  can  see  no  reason  for  holding  any 
other  portions  of  that  statute  void  at  this  time  than  were 
declared  such  by  the  decision  referred  to.  It  was  a  right- 
ful subject  of  legislation  to  repeal  or  modify  the  doctrine 
of  riparian  proprietors  in  this  Territory  so  far  as  the  same 
affected  the  possessory  rights  to  the  soil  thereof.  The  fact 
that  this  law  was  subsequently  repealed  does  not  affect  the 
decision  in  this  case.  The  rights  of  the  plaintiff  had  become 
vested  and  had  accrued  before  that  repeal.  The  repeal  of 
a  statute  will  not  destroy  vested  rights.  Another  act  recog- 
nizing the  same  right  was  enacted  in  its  place.  I  hold,  then, 
that  the  law  of  this  Territory  did  recognize  and  acknowl- 
edge the  right  to  the  use  of  water  for  the  purposes  of  irriga- 
tion, and  that  it  recognized  it  in  the  prior  appropriator,  to 
the  extent  his  soil  could  be  devoted  to  agriculture  and  no 
further. 

Thirdly,  has  this  right  been  recognized  and  acknowledged 
by  the  decisions  of  the  courts  ? 

In  California  the  courts  have  sustained  the  rights  to  appro- 
priate water  for  mining  purposes.  The  courts  of  this  Ter- 
ritory have  followed  and  repeatedly  approved  of  those 
decisions.  The  legal  grounds  for  sustaining  such  a  right 
have  been  based  upon  the  view  that  the  unsurveyed  lands 
of  the  United  States,  upon  which  any  community  settles, 
must  be  treated  as  belonging  to  no  one.  Hence,  the  one  who 
first  appropriates  any  portion  thereof,  or  incident  thereto 
belonging,  for  a  beneficial  purpose,  would  become  the  owner 
thereof  until  the  general  government,  or  some  one  claiming 
thereunder,  should  assert  title  to  the  same.  The  right  of 
the  first  appropriator  to  unowned  property  has  always  been 
recognized  and  protected  by  the  common  law.  Of  course 
this  right  can  be  regulated  by  law.  The  California  decisions 
hold  that  there  is  no  difference  between  the  appropriation 
of  water  for  mining  and  milling  purposes.  Ortman  et  al.  v. 
Dixon  et  al.,  13  Cal.  33  ;  McDonald  &  Blackburn  v.  T7t,e 
Bear  River  and  Auburn  Water  &  Mining  Compan  y.  id.  220 


1872.]  THORP  v.  FREED.  659 

In  this  case  the  court  hold  the  following  language  :  ''  We 
have  held  that  there  is  no  difference  in  respect  to  this  use, 
or  rather  purpose  to  which  the  water  is  to  be  applied,  at 
least,  that  an  appropriation  for  the  use  of  a  mill  stands  on 
the  same  footing  as  an  appropriation  for  the  use  of  mines.'1 

We  would  be  justified  in  the  inference  from  this  language 
that  that  court  did  not  make  any  difference  in  the  use  or 
purpose  for  which  water  was  appropriated,  if  the  use  was 
a  beneficial  one. 

The  courts  of  this  Territory,  and  of  California,  have  sus- 
tained the  right  to  appropriate  agricultural  land  for  agricul- 
tural purposes  upon  the  unsurveyed  public  domain.  The 
water  that  flows  over  land  is  but  an  incident  to  it.  There 
are  no  grounds  upon  which  a  court  could  sustain  the  right 
to  appropriate  land  that  would  not  apply  to  the  right  to 
appropriate  the  water  flowing  over  land,  an  incident  to  the 
land  itself.  To  give  the  one  right  and  deny  the  other,  would 
be  the  granting  of  the  right  to  a  party  to  appropriate  every 
vestige  of  a  piece  of  property  and  deny  him  the  right  to 
appropriate  a  small  portion  thereof.  The  right  to  appro- 
priate water  for  mining  or  milling  purposes,  resting  in  this 
country  before  the  act  of  congress  above  referred  to,  upon  the 
grounds  that  no  one  owns  the  property,  and  that  the  appro- 
priation is  for  a  benelicial  purpose,  establishes  a  principle 
that  certainly  ought  to  allow  the  appropriation  of  water  for 
the  purposes  of  irrigation.  In  this  latter  case  no  one,  it 
would  be  presumed,  owned  the  water,  and  the  appropriation 
would  be  for  a  beneficial  use. 

Whenever  a  legal  rule  is  once  established  by  legal  decisions, 
it  controls  all  cases  which  come  within  the  reason  of  the 
rule.  ''  Adjudged  cases  become  precedents  for  future  cases 
resting  upon  analogous  facts  and  brought  with  the  same 
reason."  1  Kent's  Com.  ^37. 

t;  Ubi  eadem  ratio  Ibl  idem  jus^  is  a  familiar  legal 
maxim,  one  which  courts  of  law  have  long  acted  upon  in 
arriving  at  legal  determinations. 

Broom,  in  his  work  on  Legal  Maxims,  page  131,  shows 
how  a  decision  in  relation  to  the  alteration  of  a  deed  or  bond 


660  THORP  v.  FREED.  [Aug.  T., 

was  declared  to  be  authority  in  the  alteration  of  a  bill  of 
exchange  and  a  promissory  note,  because  the  reason  of  the 
rule  established  in  the  former  cases  was  applicable  to  the 
latter,  and  finally  the  decisions  in  these  were  held  to  be 
authority  in  the  case  of  the  alteration  of  a  guaranty  for  the 
same  reason. 

"The  law  consists  not  in  particular  instances  and  pre- 
cedents, but  in  the  reason  of  the  law,  for  reason  is  the  life  of 
the  law."  Broom's  Legal  Maxims,  130. 

The  reason  of  the  rule  that  allows  parties  to  appropriate 
water  for  mining  or  milling  purposes  being  such  that  it 
would  fully  sanction  the  appropriation  of  water  for  the  pur- 
poses of  agriculture,  and  there  being  no  reason  why  the 
courts  should  sustain  the  right  to  appropriate  land  and 
deny  the  right  to  appropriate  water,  a  mere  incident  to  land, 
for  the  purposes  of  irrigation,  I  think  we  can  safely  say 
that  the  appropriation  of  water  for  that  purpose  has  been 
acknowledged  and  recognized  by  the  decisions  of  the  courts. 
To  hold  otherwise,  because  no  decision  had  been  made  in 
this  Territory  maintaining  the  right  to  appropriate  water  for 
this  identical  purpose,  would  be  "sticking  in  the  bark" 
and  ignoring  the  spirit  of  the  law,  and  disregarding  the 
maxim  of  which  our  common-law  jurisprudence  has  been  so 
boastful,  that  reason  is  the  soul  of  the  common  law. 

The  right  to  appropriate  water  for  the  purposes  of  irriga- 
tion having,  in  our  opinion,  been  acknowledged  and  recog 
nized  by  the  customs,  laws  and  decisions  of  the  courts  of 
this  Territory,  the  law  of  congress  comes  in  and  says  that 
whenever,  by  priority  of  possession,  the  right  to  the  use  of 
water  for  this  purpose  "  have  vested  and  accrued,"  "the 
possessors  and  owners  of  such  vested  rights  shall  be  main- 
tained and  protected  in  the  same." 

This  is  in  effect  a  grant  to  such  parties  of  this  right.  It 
appears  from  the  statement  of  the  evidence  in  this  case,  that 
all  of  the  parties  to  this  action  now  own  the  government 
Title  to  their  lands.  But  this  will  not  vary  the  rule  above 
established  in  this  case.  Whatever  rights  the  parties  had  in 
relation  to  the  waters  of  the  Prickly  Pear  creek,  vested 


1872.]  THORP  ??.  FREED.  661 

before  any  of  these  parties  acquired  their  rights  to  the  land 
under  the  general  government.  This  decision,  it  will  be 
understood,  does  not  go  to  the  extent  of  allowing  parties  to 
appropriate  and  divert  water  so  as  to  prevent  the  same  from 
flowing  over  land  to  which  a  party  had  obtained  the  gov- 
ernment title  after  the  acquisition  of  this  title.  If  no  one 
before  the  pre-emption  and  entry  of  land  by  a  party  has 
acquired  the  right  to  divert  the  waters  of  a  stream,  then  the 
patent  from  the  general  government  conveys  the  water  as 
an  incident  to  the  soil  over  which  it  flows.  If  it  has  been 
appropriated  before  the  time  when  the  patent  takes  effect, 
it  does  not. 

It  is  claimed,  however,  that  this  act  of  congress  was  only 
to  affect  settlers  upon  the  public  domain  as  long  as  it 
remained  unsurveyed  and  was  not  open  for  pre-emption  and 
entry.  There  is  no  reservation  of  this  kind  in  the  act  itself. 
And  to  show  that  this  was  not  the  intention  of  congress  we 
have  an  amendment  to  that  act,  approved  July  9,  1870.  A 
part  of  the  seventeenth  section  of  this  amendatory  act  is  as 
follows  : 

"  And  be  it  further  enacted,  That  none  of  the  rights  con- 
ferred by  sections  5,  8  and  9  of  the  act  to  which  this  act  is 
amendatory  shall  be  abrogated  by  this  act,  and  the  same 
are  hereby  extended  to  all  public  lands  affected  by  this  act, 
and  all  patents  granted  or  pre-emption  or  homesteads 
allowed,  shall  be  subject  to  any  vested  and  accrued  water 
rights  or  rights  to  ditches  and  reservoirs  used  in  connection 
with  such  water  rights  as  may  have  been  acquired  under  or 
recognized  by  the  ninth  section  of  the  act  of  which  this  is 
amendatory." 

This  part  of  that  section  clearly  demonstrates  that  con- 
gress did  not  and  does  not  intend  that  the  rights  granted  by 
section  9  of  the  previous  act  should  be  confined  to  the  unsur- 
veyed public  domain.  This  amendatory,  or  rather  con- 
firmatory, section  only  declares  what  the  courts  would  have 
been  compelled  to  hold  was  the  legal  effect  of  section  9  of 
the  previous  act.  A  grant  of  a.  right  cannot  be  divested  by 
a  subsequent  grant.  The  words  used  in  section  9  were,  as 


662  THOKP  o.  FREED.  [Aug.  T., 

we  have  said,  in  effect  a  grant.  A  grant  made  by  law  is  as 
effectual  as  a  grant  made  by  deed  or  patent.  And  a  subse- 
quent grant  of  land  would  be  subject  to  any  previous  grant 
of  a  water  right.  After  a  full  consideration  we  are  impelled 
to  the  conclusion  that  the  right  to  appropriate  water  for  the 
purposes  of  irrigation  in  this  Territory  stands  upon  as  good, 
if  not  a  better,  footing  as  the  right  to  appropriate  water  for 
mining  purposes.  This  right  has  been  and  is  subject  to  be 
regulated  by  law.  And  that  the  doctrine  in  relation  to  ripa- 
rian proprietors  has  been  abrogated  to  a  considerable  extent. 
Before  the  government  title  to  land,  over  which  water  flows, 
has  been  acquired  by  a  private  person,  such  water  may  be 
appropriated  and  diverted  in  accordance  with  legal  provis- 
ions. Afterward  it  cannot,  and  the  doctrine  of  riparian 
proprietors  would  prevail  as  to  it. 

The  case  of  Vansicle  v.  JTaines,  7  Nevada,  cited  in  this 
case,  is  not  in  point.  In  that  case  the  government  had  parted 
with  the  title  to  the  soil  over  which  the  water  flowed  before 
the  act  of  congress  of  Jul}7  26,  1866.  above  referred  to.  The 
patent  to  Haines  of  the  soil  before  the  passage  of  that  over 
which  the  water  flowed  carried  with  it  the  water  as  an  inci- 
dent thereto,  and  after  the  government  had  parted  with  this 
incident  to  the  soil  it  could  not  grant  it  to  any  one  else. 
I  certainly  agree  with  the  opinion  of  the  court  in  that  case. 

Having  arrived  at  the  legal  rules  by  which  we  will  be 
governed  in  relation  to  the  appropriation  of  water  for  the 
purpose  of  irrigation,  we  come  now  to  the  consideration  of 
whether  under  the  issues  presented  in  this  case  and  the 
facts  found  by  the  court  any  rights  of  the  plaintiffs  have 
been  infringed  so  as  to  entitle  them  to  the  inj  unction  prayed 
for  in  their  complaint. 

The  plaintiffs  aver  in  their  complaint  that  during  the 
years  1865,  1866  and  1867  they  appropriated  all  of  the 
waters  of  Prickly  Pear  creek  for  the  purposes  of  irrigation. 
That  all  of  the  waters  of  said  creek  are  necessary  to  irrigate 
their  lands,  which  they  aver  they  located  during  the  same 
years  they  appropriated  the  water,  and  that  the  said  lands 
are  upon  and  contiguous  to  the  said  creek.  That  all  of  the 


1872.]  THORP  ».  FREED. 

waters  of  said  creek  are  necessary  to  irrigate  their  land, 
and  was  used  by  them  for  that  purpose,  and  without  it  they 
would  be  unable  to  produce  any  crop,  and  aver  that  the  de- 
fendants have  diverted  and  used  the  water  of  said  creek 
appropriated  by  them,  and  continue  and  threaten  to  con- 
tinue to  do  so. 

The  defendants  deny  that  the  plaintiffs  appropriated  all 
of  the  waters  of  Prickly  Pear  creek.  Deny  that  all  of  the 
waters  of  said  creek  are  necessary  to  irrigate  the  land  of 
the  plaintiffs,  and  deny  that  they  have  diverted  more  than 
five  hundred  inches  of  the  water  of  said  creek,  and  aver 
that  their  appropriation  of  the  same  was  prior  to  any  appro- 
priation of  the  plaintiffs  thereof.  There  are  other  issues 
presented  in  the  pleadings.  These  are  enough,  however,  for 
the  purpose  of  determining  the  points  presented. 

The  court  refused  to  grant  the  injunction  prayed  for  by 
plaintiffs  and  gave  the  defendants  judgment  for  costs. 

The  plaintiff  moved  for  a  new  trial,  and  as  grounds  there- 
for assigned  the  following  list  of  errors  : 

1.  The  court  erred  in  refusing  to  grant  the  plaintiffs  the 
injunction  prayed  for  in  their  complaint. 

2.  The  court  erred  in  ordering  judgment  to  be  in  favor  of 
defendants  and  against  the  plaintiffs. 

3.  The  court  erred  in  its  finding  of  fact. 

4.  The  court  erred  in  its  conclusions  of  law. 

5.  That  the  findings  of  both  law  and  fact  are  against  the 
evidence. 

There  are  no  other  specifications  of  error  in  the  record 
than  the  above.  This  assignment  of  errors  is  so  general 
that,  as  has  been  frequently  held  by  this  court,  they  cannot 
be  considered.  This  court,  in  this  particular,  has  followed 
those  of  California,  See  Hutton  v.  Reed,  25  Gal.  483  ;  Part- 
ridge v.  San  Francisco,  27  id.  415  ;  Fitch  v.  Bunch,  3C 
id.  208. 

The  assignment  of  error  should  point  out  wherein  the 
error  was  committed.  Upon  that  distinct  point,  our  prac- 
tice act  provides:  ''When  the  notice  designates  as  the 
ground  upon  which  the  motion  will  be  made,  the  insutli- 


664  THORP  v.  FREED.  Aug.T., 

ciency  of  the  evidence  to  justify  the  verdict,  or  other  decis- 
ion, the  statement  shall  specify  the  particulars  in  whicb 
such  evidence  is  alleged  to  be  insufficient." 

In  this  case  there  was  no  verdict,  the  cause  being  a  chan 
eery  one  and  no  findings  of  fact  by  the  court.  When  the 
court  fails  to  file  any  findings,  the  presumption  of  law  is 
that  the  court  found  every  material  issue  in  the  case  against 
the  losing  party  and  in  favor  of  the  party  that  was  success- 
ful. The  opinion  of  the  court  cannot  be  treated  as  a  find- 
ing of  facts.  It  is  not  what  is  contemplated  by  the  statutes 
of  this  Territory  as  a  finding  of  facts.  Our  statute  upon 
this  subject  is  the  same  as  that  of  California.  The  courts 
of  that  State  have  held  that  it  cannot  be  treated  as  such. 
See  Hidden  v.  Jordan,  28  Gal.  305  ;  Me  Glory  v.  McClory, 
38  id.  575. 

The  statement  does  not  specify  the  particulars  in  which 
the  evidence  is  insufficient  to  support  any  of  the  findings  of 
fact  which  the  law  presumes  were  found.  Treating  the 
opinion  of  the  district  court  as  a  finding  of  facts,  and  the 
statement  does  not  specify  the  particulars  in  which  any 
thing  expressed  therein  which  could  be  considered  as  a  find- 
ing of  fact,  is  unsupported  by  the  evidence.  Under  our 
statute,  then,  the  statement  must  be  disregarded.  Laws  of 
1867,  p.  172,  §  195. 

Although  there  may  in  fact  have  been  errors  in  the  find- 
ings of  facts,  which  this  court  will  presume  were  found  by 
the  court  below,  we  have  no  means  of  reviewing  them. 

The  material  issues  having  been  found  against  the  plain- 
tiffs and  in  favor  of  the  defendants,  there  certainly  was  no 
error  in  law  for  the  court  to  refuse  to  grant  the  injunction 
asked  for  by  the  plaintiffs,  unless  the  defendants  in  their 
answer  raised  no  material  issue  which  it  was  necessary  for 
the  plaintiffs  to  establish  in  order  to  entitle  them  to  recover. 
No  such  claim  is  made  by  the  appellants.  This  court  will 
not  reverse  a  cause  because  it  holds  that  the  reasons  a  court 
may  have  given  for  his  decision  were  erroneous. 

Judgment  affirmed,  with  costs. 

WADE,  C.  J.    I  concur  with  Justice  KNOWLES,  that  the 


1872.]  THORP  v.  FREED.  665 

judgment  of  the  court  below  should  be  affirmed,  with 
costs,  but  being  unable  to  agree  with  him  as  to  some  of  the 
doctrines  enunciated  in  his  opinion  herein,  and  the  ques- 
tions involved  in  this  case  being  of  absorbing  and  general 
interest,  I  feel  justified  in  stating  my  views  thereon. 

Both  the  plaintiffs  and  defendants  have  acquired  title 
from  the  government  to  the  lands  they  possess.  They  are 
the  absolute  owners  thereof.  The  plaintiffs'  farms  are  situ- 
ate on,  contiguous  to  and  in  the  neigborhood  of  the  Prickly 
Pear  stream,  below  the  farms  of  the  defendants.  The  de- 
fendants' farms  are  situate  on  and  contiguous  to  said  stream, 
and  above  those  of  the  plaintiffs.  The  plaintiffs  located  their 
farms  in  1865,  1866  and  1867,  and  claim  to  have  appro- 
priated all  the  waters  of  said  Prickly  Pear  stream.  The 
farms  of  defendants  were  located  subsequently  to  those  of 
plaintiffs,  and  their  appropriation  of  water  for  the  purpose 
of  irrigating  their  said  farms  was  subsequent  to  that  of  the 
plaintiffs.  The  plaintiffs  claim  all  the  waters  of  the  stream 
by  virtue  of  their  said  appropriation,  and  bring  this  action 
to  restrain  the  defendants. 

It  is  claimed  that  the  local  customs,  laws  and  decisions 
of  the  courts  of  this  Territory  authorized  the  plaintiffs  to 
hold  said  waters  by  virtue  of  their  prior  appropriation  ;  and 
also  that  the  law  of  congress  of  July  26,  1866,  quoted  in 
the  foregoing  opinion,  establishes  plaintiffs'  right. 

It  will  be  observed  that  three  things  must  concur  before 
this  act  of  congress  can,  in  any  manner,  affect  the  rights  of 
the  parties  here,  if  it  is  at  all  applicable  to  the  questions 
at  issue. 

First.  The  plaintiffs'  right  to  appropriate  such  waters 
must  be  recognized  and  acknowledged  by  the  local  customs 
of  the  Territory. 

Second.  This  right  must  be  established  by  the  laws  of  the 
Territory  ;  and 

TJiird.  It  must  be  acknowledged  and  recognized  by  the 
decisions  of  the  courts. 

Under  and  by  virtue  of  this  law  of  congress,  it  is  not 
enough  to  say  that  this  right  of  appropriation  is  established 
Vol.  L  — 84 


666  THORP  v.  FBEED.         [Aug.  T., 

by  the  local  custom,  nor  is  it  sufficient  that  the  law  author- 
izes it,  or  that  the  decisions  of  the  courts  uphold  it,  but  all 
three  of  these  requisites  must  concur  and  affirmatively  exist 
to  establish  this  right. 

There  is  no  proof  whatever  in  the  case  tending  to  show 
the  existence  of  any  peculiar  local  custom  or  usage  within 
the  district  where  these  lands  are  located  authorizing  the 
appropriation  of  said  waters  by  the  plaintiffs.  And  to  say 
there  is  such  custom,  we  must  do  so  in  the  absence  of  any 
proof  to  establish  the  fact,  and,  as  I  believe,  when  the  fact 
itself  does  not  exist. 

What  is  a  custom,  and  how  does  it  become  a  part  of  the 
law?  In  the  first  place  it  must  be  certain.  It  must  be 
clearly  defined  and  unmistakable.  It  must  be  free  from 
doubt.  And  it  must  be  reasonable.  It  must  not  be  incon- 
sistent with  itself.  Customs  cannot  make  a  contradictory 
or  unreasonable  law.  It  must  be  continuous.  It  must  have 
existed  uninterruptedly  for  a  long  period  of  time.  Every 
custom  varying  the  general  law  presumes  a  grant  at  its  in- 
ception. To  establish  a  local  custom  derogating  from  the 
general  law,  it  is  not  enough  to  prove  that  the  act  has  been 
frequently  done ;  it  must  be  shown  to  be  so  generally 
known  and  recognized  that  a  fair  presumption  arises,  that 
the  parties  entered  into  their  contract  with  a  silent  refer 
ence  to  it. 

A  custom  is  only  obligatory  upon  the  parties  when  the 
law  does  not  provide  for  the  case.  A  local  custom,  opposed 
to  the  provisions  of  a  statute,  is  not  binding.  This  is  the 
general  law  upon  the  subject  of  customs,  and  there  is 
nothing  in  the  case  to  intimate  that  the  local  usages  and 
rules  of  the  district  where  this  controversy  arose  have,  in 
any  manner,  varied  or  changed  the  general  doctrine  upon 
the  subject  of  customs.  So  we  are  compelled  to  resort  to 
the  general  law  in  order  to  ascertain  what  a  custom  is. 

This  Territory  was  organized  in  1864,  and  hardly  a  set- 
tlement in  it  is  eight  years'  old,  and  the  notion  that  a  cus- 
tom can  grow  up  in  that  short  period,  and  become  a  part 
of  the  established  law  of  the  land,  it  seems  to  me  violates 


1872.]  THORP  v.  FREED.  007 

every  rule  applicable  to  customs.  It  is  certain  enough  that 
men  have  taken  up  and  claimed  to  appropriate  the  waters 
of  the  streams  of  this  Territory,  but  ever  since  the  settle- 
ment of  the  Territory,  the  question  as  to  the  right  to  do 
this  has  been  in  constant  litigation,  and  the  right  has  not 
been  established  or  acquiesced  in. 

Let  us  inquire  how  this  doctrine,  that  prior  appropriation 
of  water  carried  with  it  priorty  of  right,  first  made  its 
appearance. 

When  the  mineral  lands  of  California  were  discovered, 
people  flocked  there  by  thousands.  The  lands  they  entered 
upon  belonged  to  the  government  and  were  unsurveyed. 
They  were  simple  trespassers  upon  the  public  domain,  and 
the  courts  of  California  held,  for  the  reason  that  they  were 
trespassers  and  had  no  rights  upon  the  grounds  the}7  were 
occupying,  that  the  first  trespasser  who  took  up  and  appro- 
priated water  could  hold  it  against  a  second  trespasser. 
This  was  a  correct  holding  under  the  peculiar  situation, 
and  the  peculiar  circumstances  of  the  case,  but  this  doc 
trine  grew  out  of  these  peculiar  and  anomalous  circum- 
stances, and  had  its  foundation  in  the  fact  that  the  occupiers 
of  these  mineral  lands  were  trespassers.  This  doctrine 
was  never  applied  to  agricultural  lands  in  California,  for 
the  whole  reason  thereof  falls  to  the  ground  when  the 
government  comes  to  part  with  its  title,  and  sells  its  lands 
to  actual  purchasers. 

And  because  this  principle  of  "prior  in  time,  prior  in 
right "  became  thus  established  in  California,  as  applied  to 
mineral  lands  of  the  public  domain,  an  effort  has  been 
made  in  this  Territory  to  apply  the  same  doctrine  to 
agricultural  or  farming  lands,  but  the  principle  has  never 
been  acquiesced  in  by  the  people,  and  is  now  in  litigation  all 
over  the  Territory.  And  it  seems  to  me  perfectly  clear  that 
the  reason  for  the  doctrine  as  applied  to  trespassers  upon 
the  public  domain,  utterly  fails  when  applied  to  actual 
purchasers  from  the  government  of  agricultural  lands. 

So  we  say  the  principle  of  "  prior  in  time,  prior  in  right,'' 
as  applied  to  the  appropriation  of  water  for  the  purposes  of 


668  THORP  «.  FBEED.  [Aug.  T., 

irrigation,  is  not  an  established  custom  of  the  country. 
This  alone  would  make  inoperative  the  act  of  congress  of 
July  26,  1866.  But  let  us  inquire  if  this  principle  is  estab- 
lished by  the  statutes  of  the  Territory. 

It  is  claimed  by  the  act  of  the  Territorial  legislature  of 
January  11,  1865,  that  priority  of  appropriation  carries 
with  it  priority  of  right,  and  two  sections  of  said  act  are 
quoted  in  the  opinion  of  Justice  KISTOWLES,  to  establish  this 
view  of  the  statute.  We  submit  that  in  the  construction  of 
this  statute  it  must  be  taken  as  a  whole,  and  we  have  the 
right,  and  it  is  our  duty,  to  look  at  the  whole  statute  in 
order  to  arrive  at  the  intention  of  the  legislature.  And 
looking  at  the  whole  statute,  we  say  most  unhesitatingly, 
that  the  whole  purpose  of  the  statute  was  to  utterly  abolish 
and  annihilate  the  doctrine  of  prior  appropriation,  and  to 
establish  an  equal  distribution  of  the  waters  of  any  given 
stream  in  the  agricultural  districts  of  the  Territory. 

The  fourth  section  of  said  act  provides:  "That  in  case 
the  volume  of  water  in  said  stream  or  river  shall  not  be  suf- 
ficient to  supply  the  continued  wants  of  the  entire  country 
through  which  it  passes,  then  the  nearest  justice  of  the 
peace  shall  appoint  three  commissioners  as  hereinafter  pro 
vided,  whose  duty  it  shall  be  to  apportion  in  a  just  and 
equitable  proportion  a  certain  amount  of  said  water  upon 
certain  alternate  weekly  days  to  different  locators,  as  they 
may  in  their  judgment  think  best,  for  the  interest  of  all  tlie 
parties  concerned,  and  with  due  regard  to  the  legal  rights 
of  all." 

If  this  section  of  the  law  does  not  mean  that  there  shall 
be  an  equal  distribution  of  the  waters  of  a  stream  among 
all  the  parties  concerned  in  such  water,  without  any  regard 
whatever  to  the  date  of  location  or  appropriation,  then  we 
are  utterly  unable  to  comprehend  the  language  used.  It 
provides  that  the  commissioners  shall  apportion  the  waters 
of  the  stream  in  a  just  and  equitable  manner  among  all  the 
parties  along  the  stream.  Suppose  one  man  had  appro- 
priated all  the  waters  of  a  stream,  and  twenty  other  men 
lower  down  had  and  owned  farms  through  which  the 


1872.]  THORP  v.  FREED.  669 

stream  ran,  can  it  be  doubted  that  under  this  statute  the 
commissioners  would  have  been  compelled  to  apportion  the 
waters  of  the  stream  among  the  riparian  owners  equally  3 
It  seems  to  me  the  question  does  not  admit  of  a  doubt. 

Then  the  doctrine  contended  for  is  not  established  by  the 
Territorial  statute  of  1865,  and  again,  does  the  law  of  con- 
gress of  July  26,  1866,  become  inoperative  ? 

It  is  not  claimed  that  the  decision  of  any  court,  either  in 
this  Territory  or  California,  has  pretended  to  establish  the 
doctrine  of  prior  appropriation  as  here  sought  to  be  applied 
to  agricultural  lands. 

Then  there  being  no  local  custom,  no  local  or  statute  law, 
and  no  decision  of  any  court  establishing  the  principle  con- 
tended for,  it  is  evident  enougli  that  no  one  can  acquire  any 
vested  rights  under  and  by  virtue  of  the  act  of  congress  of 
July  26,  1866,  for  this  act  only  claims  to  authorize  and  per- 
mit what  is  already  established  by  the  local  customs,  laws 
and  decisions  of  courts. 

Then  how  are  the  rights  of  these  parties  to  be  settled  and 
determined  ?  The  act  of  the  legislature  of  January  11,  1865, 
having  been  declared  void  by  the  supreme  court  and  subse- 
quently repealed  by  the  legislature,  and  the  act  of  congress 
of  July  26, 1866,  not  applying  to  the  case  in  any  respect,  we 
are  necessarily  compelled  to  look  to  the  common  law  to 
settle  the  questions  at  issue.  The  common  law  is  in  force  in 
this  Territory,  when  not  in  conflict  with  the  statute  laws.  In 
the  Bannack  statute,  p.  856,  it  is  enacted  : 

"  That  the  common  law  of  England,  so  far  as  the  same  is 
applicable  and  of  a  general  nature  and  not  in  conflict  with 
the  special  enactments  of  this  Territory,  shall  be  the  law 
and  rule  of  decision,  and  shall  be  considered  as  of  full  force 
until  repealed  by  legislative  authority." 

We  therefore  have  now  arrived  at  a  point  in  this  investi- 
gation where  we  are  authorized  and  required  to  go  into  an 
••xa initiation  of  the  rights  of  riparian  owners  as  at  common 
iaw,  and  also  to  the  applicability  of  that  law  to  the  wants, 
needs,  circumstances  and  conditions  surrounding  the  people 
of  this  mountain  and  mineral  region  ;  and  it  would  not  be 


670  THORP  v.  FREED.  [Aug.  T., 

unsafe  to  say,  that  the  common  law,  so  sacred  to  every 
lawyer  and  jurist,  and  formed  as  it  was  from  the  customs, 
usages,  habits  and  thoughts  of  a  people  of  a  different  climate 
from  our  own,  where  the  rains  caused  an  abundance  of 
moisture  for  farming  and  agricultural  purposes,  and  the 
annual  crops  were  produced  and  perfected  without  the  aid 
of  irrigation,  cannot  be  followed  in  its  strictness  and  its 
technicality  in  a  country  where  the  physical  conditions 
and  the  nature  of  the  climate  renders  it  impossible.  But 
if  we  can  discover  the  reason  of  the  law,  and  the  principles 
upon  which  it  was  founded,  and  the  natural  wants  and 
requirements  of  the  people  for  whose  prosperity  and  benefit 
the  law  was  instituted  and  established,  we  have  then  a 
foundation  from  whence,  by  analogy  and  deduction,  we  can 
apply  the  principles  we  have  found  to  other  peoples,  sur- 
rounded by  other  and  different  circumstances,  wants  and 
conditions.  And  so  the  principles  and  the  reason  of  the 
common  law  adapts  itself  to  every  climate,  and  to  the  physi- 
cal conditions  of  every  country,  as  dictated  by  the  natural 
wants  of  the  people  in  whose  behalf  the  law  is  invoked. 

If  the  common  law  cannot  be  taken  as  authority  from 
whence  the  rights  of  these  parties  are  to  be  eliminated  and 
determined,  then  we  have  no  law  on  the  subject,  and  neither 
of  the  parties  here  have  any  definable  rights  in  the  premises. 
But  we  hold  that  the  common  law  is  applicable  to  the  case 
in  hand,  and  that  it  settles  and  determines  the  rights  of  the 
parties  to  this  litigation  justly  and  with  explicit  certainty. 
The  common  law  declares  that  a  stream  begins  at  its  source 
where  it  comes  to  the  surface,  and  the  owners  of  lands  adjoin- 
ing it  have  a  natural  right  to  the  use  of  the  water  from  its 
source  to  its  termination. 

We  maintain  this  as  the  established  uniform  doctrine  of 
the  common  law  :  that  a  water-course  is  essentially  a  part 
of  the  freehold  through  which  it  passes,  and  the  authorities 
abundantly  uphold  this  position.  We  will  cite  a  few  of 
them  : 

"  A  river  or  stream,  of  common  right,  belongs  to  the  pro- 
prietors of  the  land  between  which  it  runs,  to  each  that  part 


1872.]  THORP  a.  FBEED.  671 

nearest  the  land,  and  this  rule  is  mainly  derived  from  the 
fact  that  the  riparian  proprietor  is  the  owner  of  the  soil 
under  the  water,  and  by  the  general  law  of  property  becomes 
entitled  as  of  right  to  all  accessories.  And  therefore  it  is 
that  a  grant  of  land  conveys  to  the  grantee  not  only  the 
field  or  the  meadow,  but  all  growing  timber  or  water,  stand- 
ing or  being  thereupon,  and  thus  it  is  that  a  stream  of  water 
becomes  the  property  for  certain  uses  of  the  owner  of  the 
soil  over  which  it  passes.  It  has  therefore  been  held  that 
the  right  to  a  water-course  is  a  part  of  the  freehold  of  which 
r.o  man  can  be  disseized  but  by  due  process  of  law."  Ang. 
on  Water-Courses. 

"The  owners  of  water-courses  are  denominated  by  the 
civilians  riparian  proprietor s,  and  the  use  of  this  term  is 
now  fully  introduced  into  the  common  law.  The  soil  of  the 
bed  of  the  stream,  and  consequently  the  water,  may  be,  and 
most  often  is,  divided  between  the  two  riparian  owners  ;  that 
is,  the  land  on  one  side  may  be  owned  by  one  person  and 
on  the  opposite  side  by  another  ;  when  such  is  the  case,  each 
proprietor  owns  to  the  middle  of  the  stream.  There  is  but 
one  difference  between  the  stream  running  through  a  man's 
land  and  one  which  runs  by  the  side  of  it ;  in  the  former 
case  he  owns  the  whole  and  in  the  latter  but  half/'  Starr  v. 
Chid,  20  Wend.  149. 

"  If  the  proprietor  of  a  large  tract  of  land  through  which 
a  stream  of  water  flows  sells  parcels  thereof  above  and  below 
him,  each  grantee  would  take  his  parcel  with  full  right  to 
use  the  flowing  water  on  his  own  land,  subject  to  the  same 
rights  as  proprietors  above  him."  Aug.  on  Water-Courses. 

"It  is  a  settled  principle  of  law,  that  owners  of  lands  on 
the  banks  of  fresh  water  rivers,  above  the  ebbing  and  flow- 
ing of  the  tide,  has  the  exclusive  right  of  lishiug  as  well  as 
the  right  of  property  opposite  their  respective  lands,  ad 
filuin  medium  acquce.  And,  when  the  lands  on  each  side 
of  the  river  belonged  to  the  same  person,  he  had  the  exclu- 
sive right  of  fishing  in  the  whole  river,  so  far  as  his  land 
extended  along  the  same/'  3  Kent,  411. 

Land,  says  Lord  Coke  (4  Co.),  in  legal  signification,  com 


672  THORP  v.  FREED.  [Aug.  TM 

prehendeth  any  ground,  soil  or  earth  whatsoever,  as  mead- 
ows, pastures,  woods,  moors,  waters,  marshes,  fruses  and 
heath.  Terra  est  nomen  generalissimum  et  comprehendit 
omnes  species  terrce. 

"  The  only  mode  by  which  a  right  of  property  in  a  water- 
course above  tide  water  can  be  withheld  from  a  person  who 
receives  a  grant  of  the  land,  is  by  a  reservation  directly 
expressed  or  clearly  implied  to  such  effect.  If  the  intention 
of  the  grantor  is  not  to  convey  any  interest  in  the  water,  or 
any  portion  of  it,  he  can  exclude  it  by  the  insertion  in  the 
instrument  of  conveyance,  of  proper  words  for  the  purpose 
of  so  doing ;  but,  in  the  absence  of  such  words,  the  bed  and 
consequently  the  stream  itself  passes  by  the  conveyance." 
Ang.  on  Water-Courses. 

''The  uses  of  the  waters  of  private  streams  belong  to  the 
owners  of  the  land  over  which  they  flow.  They  are  as 
much  individual  property  as  the  stones  scattered  over  the 
soil."  10  Ohio,  297. 

"  A  right  to  a  stream  of  water  is  as  sacred  as  a  right  to  the 
soil  over  which  it  flows.  It  is  a  part  of  the  freehold  of  which 
no  man  can  be  disseized  but  by  the  lawful  judgment  of  his 
peers  or  by  due  process  of  law."  Gardner  v.  Village  of 
Newburg,  2  Johns.  Ch.  166. 

In  a  note  to  Ex  parte  JeTtnings,  6  Cow.  543,  it  is  held  : 
"The  general  distinction,  deemed  of  so  much  excellence 
and  importance  by  the  learned  judges,  and  which  at  this 
day  no  lawyer  will  hazard  his  reputation  by  controverting, 
is,  that  rivers  not  navigable,  that  is,  fresh  water  rivers  of 
what  kind  soever,  do  of  common  right  belong  to  the  owners 
of  the  soil  adjacent  to  the  extent  of  their  land  in  length : 
but  that  rivers  where  the  tide  ebbs  and  flows  belong,  of 
common  right,  to  the  State  ;  that  this  ownership  of  the 
citizen  is  of  the  whole  river,  viz.  :  the  soil  and  the  water  of 
the  river." 

In  WadswortTi  v.  Tillotson,  15  Conn.  372,  speaking  of 
water-courses,  the  court  say:  "This  right  is  not  an  ease- 
ment or  appurtenance,  but  it  is  inseparaby  annexed  to  the 
soil,  and  is  parcel  of  the  land  itself." 


1872.]  THORP  T.  FREED.  673 

"  The  right  to  flowing  water  is  now  well  settled  to  be  a 
right  incident  to  property  in  the  land."  Elliott  v .  Fitch- 
burg  Railroad  Co.,  10  Gush.  193. 

In  Johnson  v.  Jordan,  2  Mete.  239,  speaking  of  flowing 
water,  the  court  say:  "It  is  inseparably  annexed  to  the 
soil  and  passes  with  it,  not  as  an  easement,  nor  as  an 
appurtenance,  but  as  parcel.  Use  does  not  create  it,  and 
disuse  cannot  destroy  or  suspend  it ."  In  Pagev.  Williams, 
2  Dev.  &  Bat.  55,  the  court  say  :  "  The  common  right  here 
spoken  of  is  not  that  existing  in  all  men  in  respect  to  things 
publici  juris,  but  that  common  to  the  proprietors  of  the 
land  on  the  stream.  And  as  between  them  the  use  to  which 
one  is  entitled  is  not  that  which  he  happens  to  get  before 
another,  but  it  is  that  which,  by  reason  of  his  ownership  of 
land  on  the  stream,  he  can  enjoy  on  his  own  land  and  as 
appurtenant  to  it."  In  Dams  v.  Puller,  12  Vt.  190,  the 
court  say  :  "  The  owner  of  land  has  rights  to  the  use  of  a 
private  stream  running  over  his  land  peculiar  to  himself  as 
owner  of  the  land,  not  derived  from  occupancy  or  appro- 
priation, and  not  common  to  the  whole  community.  It  is 
the  right  to  the  natural  flow  of  the  stream.  Of  this  right 
ho  cannot  be  deprived  by  the  mere  use  or  appropriation  of 
another,  but  only  by  grant,  or  by  the  use  or  occupancy  of 
another  for  such  length  of  time  as  that  therefrom  a  grant 
may  be  presumed."  For  further  authorities  upon  this 
subject,  we  refer  to  the  case  of  Vansickle  v.  Haines,  7 
Nev.  257. 

The  water  in  a  stream  thus  becoming  a  part  of  the  free- 
hold itself,  and  passing  with  the  freehold  as  incident  to  it, 
to  whom  does  this  water  belong  in  streams  upon  the  public 
domain,  before  the  government  has  parted  with  its  title  ?  It 
vvill  not  be  denied  that  it  belongs  to  the  government,  and 
that  when  it  conveys  a  title  to  the  land,  the  waters  flowing 
over  or  through  the  land  pass  with  the  grant,  and  the 
grantee  thereby  requires  all  the  rights  and  all  the  title  of 
the  government. 

The  right  to  the  waters  of  a  flowing  stream  thus  becom- 
ing a  part  of  the  freehold  and  passing  with  the  land,  to 
VOL.  I. —86. 


674  THOEP  v.  FREED.  [Aug.  T., 

what  uses  can  each  proprietor  put  the  water  as  it  flows 
through  his  land  ? 

By  the  general  law  applicable  to  running  streams,  every 
riparian  proprietor  has  a  right  to  what  may  be  called  the 
ordinary  use  of  water  flowing  past  his  land ;  for  instance, 
to  the  reasonable  use  of  the  water  for  domestic  purposes 
and  for  his  cattle,  and  this  without  regard  to  the  effect 
which  such  use  may  have,  in  case  of  a  deficiency,  upon  pro- 
prietors lower  down  the  stream.  But,  further,  he  has  the 
right  to  use  it  for  any  purpose,  or  what  may  be  deemed  an 
extraordinary  use  of  it,  provided  he  does  not  thereby  inter- 
fere with  the  rights  of  other  proprietors  either  above  or 
below  him.  Subject  to  this  condition,  he  may  dam  up  the 
stream  for  the  purposes  of  a  mill,  or  divert  the  water  for 
other  purposes,  but  he  has  no  right  to  interrupt  the  regular 
flow  of  the  stream  if  he  thereby  interferes  with  the  lawful 
use  of  the  water  by  other  proprietors  and  inflicts  upon 
them  a  sensible  injury.  12  Moore's  P.  C.  156.  In  other 
words,  each  riparian  proprietor  has  the  right  to  use  the 
water  of  the  stream  to  quench  his  thirst,  for  culinary  pur- 
poses, and  for  the  use  of  his  cattle,  and  this,  although  such 
use  may  injure  the  proprietor  of  the  lower  estate,  and  he 
can  use  the  water  for  other  and  speculative  uses  if  he  does 
not  thereby  interfere  with  the  flow  of  the  stream,  or  dimin- 
ish its  quantity  or  quality. 

Thus  speaks  the  law  in  a  country  where  the  rains  suffi- 
ciently moisten  the  earth  to  produce  and  ripen  the  fruits 
thereof,  and  where  irrigation  for  the  purposes  of  agricul- 
ture is  unknown,  and  it  will  be  observed  with  what  zealous 
care  the  streams  and  water- courses  are  guarded  and  pro- 
tected, and  the  reason  for  this  care  is,  the  fact  that  the 
waters  of  a  flowing  stream,  as  it  enters  the  lands  of  the 
different  proprietors,  and  while  it  remains  thereon,  becomes 
a  part  of  the  freehold,  and  as  it  is  supposed  to  be  used  to 
support  and  sustain  life,  and  derives  its  value  from  this 
important  use,  the  law  declares  that  it  must  enter  the  lands 
of  each  proprietor,  through  which  the  stream  passes,  undi 


1872.]  THORP  c.  FREED.  676 

minished  in  quantity,  and  so  pure  and  unpolluted  as  to  De 
fit  for  the  primal  use  and  purpose. 

Now,  it  must  be  kept  steadily  in  mind  that  the  common 
law  upon  this  subject  is  the  law  of  this  Territory,  so  far  as 
the  same  is  applicable  to  our  peculiar  situation  and  circum- 
stances. And  following  the  reasons  and  the  analogies  of 
the  common  law,  we  ask  to  what  uses  may  the  waters  of  a 
stream  be  applied  by  the  riparian  proprietors  thereof,  who 
are  ^ngaged  in  the  pursuits  of  agriculture  and  farming,  in  a 
dry  and  arid  country,  where  the  scarce  rains  do  not  suffi- 
ciently moisten  the  earth,  and  irrigation  is  necessary  to  the 
successful  production  of  crops  ?  We  must  remember  that 
water,  by  the  general  law,  can  be  used  to  sustain  life  and 
for  domestic  uses  by  each  owner  of  the  land  through  whose 
land  the  stream  passes  ;  that  is  to  say,  it  can  be  applied  to 
the  uses  which  are  absolutely  necessary  for  the  well-being 
and  civilization  of  society.  And  we  say  that,  in  the  country 
we  have  described,  with  such  necessities  and  conditions, 
and  in  the  agricultural  districts  thereof,  this  proposition 
can  be  successfully  maintained  :  that  water  for  the  purposes 
of  irrigation  naturally  belongs  to  each  riparian  proprietor 
in  certain  quantities,  as  water  for  culinary  purposes  belongs 
to  such  proprietor  at  common  law.  Evidently  the  propor- 
tions and  the  quantity  of  water  that  can  be  thus  used 
should  be  clearly  and  absolutely  defined  by  appropriate 
legislation  or  by  common  consent,  which  would  soon  grow 
into  a  custom  having  the  force  and  effect  of  law.  Unless 
the  common  law  can  be  thus  modified  and  extended  (if  such 
use  of  water  is  a  modification  of  that  law),  irrigation  for 
agricultural  purposes  would  be  absolutely  prohibited,  for 
the  common  law  is  the  only  law  in  force  here  upon  the 
subject,  and  no  modification  of  the  common  law  is  required 
in  order  to  authorize  the  use  of  water  in  a  flowing  stream 
by  the  riparian  owners  thereof  for  the  purposes  of  irrigation. 

Water  for  the  purposes  of  irrigation  in  this  country  is 
equally  necessary  as  water  to  sustain  life.  They  are  terms 
Implying  the  same  thing.  The  resources  of  the  country 
be  developed,  and  our  valleys  cannot  be  reclaimed 


676  THOKP  v.  FREED.        [Aug.  T., 

and  become  inhabited,  unless  the  waters  of  the  streams  can 
be  used  in  an  equitable  manner,  to  cause  the  earth  to  bring 
forth  its  fruits. 

So,  then,  we  say  that  water  for  irrigation  in  this  country 
as  naturally  belongs  to  the  lands  through  which  the  stream 
passes,  in  certain  proportions  as  in  other  countries  it  belongs 
to  the  land  to  supply  the  necessities  of  life.  Irrigation  in 
this  country  is  what  rain  is  to  other  countries,  and  a  mon- 
opoly of  one  would  be  equally  as  appropriate  as  that  of  the 
other,  and  equally  sustained  by  any  principle  of  justice 
and  equity.  As  in  other  countries,  the  rains  come  to  the 
prior  and  to  the  subsequent  locators  of  lands  upon  a  stream 
in  equal  proportions,  so  in  this  arid  country  should  the 
waters  of  any  given  stream  be  divided  equally  among  the 
farmers  for  the  purposes  of  irrigation. 

The  law  in  aid  of  justice  and  equity  must  conform  to  the 
peculiar  and  unusual  conditions  surrounding  each  country 
where  it  is  administered,  and  the  farming  interests  of  this 
Territory  can  only  be  crowned  with  success  when  a  fair  and 
equitable  distribution  of  our  scarce  waters  is  accomplished. 

Let  us  examine  the  doctrine  in  an  agricultural  com- 
munity, as  the  same  is  applied  to  mining  districts,  that  the 
first  appropriators  of  the  waters  of  a  stream  acquire  an 
absolute  property  therein  as  against  every  one,  and  that 
they  can  hold  the  same  as  against  all  subsequent  appro- 
priators thereof,  and  as  against  the  government  when  it 
comes  to  sell  its  lands  lower  down  the  stream. 

In  the  first  place,  this  doctrine  leads  to  a  mo  nopoly  of 
water,  which,  in  the  language  of  one  of  the  witnesses  in  this 
case,  "  is  more  precious  than  gold."  An  illustration  may 
be  useful.  Suppose  that  ten  men  own  each  a  farm  of  one 
hundred  and  sixty  acres,  upon  the  banks  of  a  stream,  whose 
volume  is  three  thousand  two  hundred  inches  of  water,  and 
with  ditches  appropriate  the  waters  of  such  stream.  If  two 
inches  of  water  is  necessary  for  the  successful  irrigation  of 
one  acre  of  land  for  the  season  or  three  hundred  and  twenty 
inches  for  one  hundred  and  sixty  acres,  each  man  would 
be  entitled  to  three  hundred  and  twenty  inches,  or  ten  men 


1872.]  THORP  «.  FBEED.  677 

to  three  thousand  two  hundred  inches.  And  if  each  of 
these  men,  year  after  year,  should  not  wish  to  cultivate  but 
sixty  acres  of  their  land,  or  six  hundred  acres  altogether, 
yet  they  would  hold  the  two  thousand  inches  of  water  they 
did  not  use ;  and  if  subsequent  locators  above  them  on  the 
stream  should  attempt  to  appropriate  any  of  the  waters 
thereof,  an  injunction  would  restrain  them  from  so  doing, 
and  thus  one  thousand  acres  of  land  would  be  lost  to 
cultivation. 

The  prior  appropriator,  by  virtue  of  this  doctrine,  can 
hold  sufficient  water  to  irrigate  the  land  he  locates,  and 
if  he  takes  up  one  hundred  and  sixty  acres  of  land,  he  can 
also  appropriate  sufficient  water  to  irrigate  the  same,  and 
yet  he  may  riot  in  fact,  and  may  never  intend  to  cultivate 
more  than  one-third  of  his  land.  Can  the  subsequent  appro- 
priator of  water,  or  the  subsequent  locator  of  land  along  the 
banks  of  a  stream,  be  deprived  of  the  use  of  water  in  this 
manner,  and  especially  in  a  country  like  this,  where  every 
drop  of  water  should  be  made  available  for  the  purposes  of 
agriculture  and  farming  ? 

Is  it  not  the  true  policy  of  this  Territory  to  erect  such  a 
system  of  laws  here  as  shall  distribute  our  short  supply 
of  water  to  the  best  advantage  to  all  our  people?  The 
common  law  applied  to  this  country  is  ample  and  sufficient 
to  secure  this  much  desired  end. 

An  examination  of  this  doctrine  of  prior  appropriation, 
and  the  rights  thereby  supposed  to  accrue,  as  it  aifects  the 
interests  of  the  general  government,  may  not  be  out  of  place. 
The  United  States  is  the  original  proprietor  of  the  soil, 
and  as  such  has  the  right  to  make  a  final  distribution 
thereof.  This  is  a  sovereign  prerogative  inherent  in  every 
government.  The  proceeds  of  the  sale  of  the  public  lands 
is  a  fruitful  source  of  revenue  to  the  government,  not  only 
as  to  the  amount  received,  but  in  a  much  larger  sense  ;  in 
extending  the  area  of  our  civilization  and  opening  up  tc 
our  ever-increasing  population  cheap  lands  for  cultivation 
and  improvement.  Now,  if  the  doctrine  of  prior  appropria- 
tion is  to  prevail,  this  consequence  must  inevitably  result: 


678  THORP  v.  FREED.  [Aug.  T.> 

A  few  men  will  locate  their  farms  near  the  mouth  of  a 
stream  and  appropriate  the  waters  thereof,  and  any  subse- 
quent locators  up  the  stream  would  be  guilty  of  a  trespass 
if  they  undertook  to  use  any  of  the  waters  thereof,  and  an 
action  could  be  prosecuted  and  maintained  against  them. 
The  result  is,  that  thousands  of  acres  in  our  valleys  must 
remain  barren  deserts,  while,  with  an  equal  and  just  distri- 
bution of  water,  all  might  be  cultivated.  Thus  the  prior 
appropriator  renders  vast  tracts  of  land  utterly  worthless, 
and  their  sale  is  lost  to  the  government  and  their  cultivation 
to  the  people.  Such  a  doctrine  is  against  public  policy  and 
cripples  the  life  of  the  industries  of  the  Territory. 

The  doctrine  of  prior  appropriation  goes  to  the  extent  of 
declaring  that  he  who  first  appropriates  the  waters  of  a 
stream  upon  the  government  lands  thereby  acquires  an  abso- 
lute property  therein,  as  against  all  the  world,  which  prop- 
erty is  capable  of  being  bought  and  sold,  mortgaged,  devised, 
inherited  and  transmitted,  from  generation  to  generation, 
like  other  property.  We  maintain  just  the  contrary,  and 
say  that  the  title  to  water  thus  appropriated  still  remains  in 
the  government  notwithstanding  such  appropriation ;  and 
that  the  government,  when  it  conveys  its  title  to  a  purchaser, 
conveys  a  title  to  the  land,  and  a  title  to  the  stream  of  water 
passing  through  it,  as  incident  thereto,  and  as  a  part  and 
parcel  of  the  freehold,  and  that  no  appropriation  in  any 
manner  affects  the  ability  of  the  government  to  convey  its  title. 

Let  us  suppose  that  A,  by  means  of  a  ditch,  appropriates 
the  waters  of  a  stream,  and  that  he  is  the  first  appropriator 
thereof.  It  will  not  be  denied  that  the  government  was 
once  the  owner  of  this  water,  and  that  it  still  owns  the  same 
will  not  be  denied,  unless  by  reason  of  some  grant  or  license 
it  has  parted  with  its  title ;  but  no  such  conveyance  is 
claimed,  and  the  whole  claim  is,  that  the  locator  takes  up, 
appropriates  and  converts  to  his  own  use  the  waters  of  the 
stream,  which  water  is  confessedly  the  property  of  the  gov- 
ernment, while  yet  the  government  is  absolutely  passive  in 
the  matter ;  the  meaning  of  which  is,  that  the  appropriator 
simply  converts  to  his  own  use  and  benefit  the  property  of 


1872.:  THORP  -o.  FREED.  679 

the  government.  Such  conversion  does  not  change  the  title 
to  the  property  and  it  still  remains  in  the  government.  The 
government  being  thus  the  owner  of  the  water  as  well  as 
the  soil  through  which  it  flows  and  passes,  and  having  the 
right  to  sell  and  dispose  of  the  same,  absolutely  and  without 
condition,  when  it  comes  to  sell  to  a  subsequent  locator 
upon  the  supposed  stream,  what  interest  does  the  purchaser 
thereby  acquire?  What  rights  does  the  grantee  thereby 
succeed  to  ?  Does  he  obtain  by  his  purchase  the  bare  soil 
and  no  title  or  interest  in  the  water  flowing  through  it  ?  It 
must  not  be  forgotten  that  the  stream  of  water  is  an  incident 
to  the  land,  and  is  a  part  and  parcel  of  it,  and  we  say  a 
purchaser  under  such  circumstances  from  the  government 
takes  all  the  title  of  the  government.  The  purchaser  sue 
reeds  to  all  the  rights  of  the  grantor.  If  so,  an  inquiry 
i  uto  the  rights  and  the  title  of  the  government  in  the  premises 
is  in  point.  That  the  government  is  the  absolute  owner  of 
all  the  public  lands  to  which  the  Indian  title  has  been  extin- 
guished is  a  proposition  so  clear  and  certain  that  a  refer- 
ence to  authorities  seems  to  be  unnecessary.  That  it  can 
s*'ll  and  dispose  of  such  lands,  and  thereby  convey  a  per- 
fect title,  and  that  it  can  protect  and  defend  such  property 
against  any  and  all  trespasses  and  wrongful  acts,  is  equally 
certain  and  beyond  question. 

In  the  case  of  Vansickle  v.  Haines,  before  referred  to,  the 
court  say  :  "  It  is  a  proposition  universally  admitted  that 
the  United  States  is  the  unqualified  proprietor  of  all  public 
lands  to  which  the  Indian  title  has  been  extinguished.  Cer- 
tainly there  is  none  other  who  has  any  right  to  or  claim 
upon  it  which  in  any  way  qualifies  the  right  of  the  federal 
government.  Although  it  has  sometimes  been  suggested 
that  the  unoccupied  lands  belonged  to  the  several  States 
in  which  they  may  be  located,  the  suggestion  has  never 
received  the  serious  sanction  of  statesmen  or  the  courts  of 
the  country.  On  the  contrary,  it  is  the  universal  language 
of  the  judges  that  the  unqualified  right  of  property  is  in 
the  United  States.  *  The  English  doctrine  in  relation  to  real 
estate  is  that  there  can  be  no  adverse  possession  against  the 


080  THORP  v.  FREED.  [Aug.  T., 

crown,  nor  against  its  grantee  until  there  be  a  new  entry 
after  the  grant.  An  entry  on  land  belonging  to  the  crown 
is  held  not  to  be  a  disseizin,  but  a  mere  intrusion  on  the 
king's  possession.  His  possession  is  not  thereby  divested, 
but  in  legal  contemplation  still  continues.  The  king,  not 
being  disseized  by  the  entry,  his  conveyance  of  the  freehold 
is  good  and  his  grantee  is  seized  by  virtue  of  it.  The 
grantee  succeeds  to  the  rights  of  the  crown,  and  cannot  be 
disseized  without  another  entry  after  the  conveyance.  The 
individual  making  the  original  entry  acquires  no  new  right 
by  the  conveyance,  but  only  continues  his  old  interest,  and 
remains  an  intruder  still,  liable  to  be  sued  in  trespass. ' 
Bacon's  Abr.  331. 

'  There  can  be  no  doubt  but  that  the  same  principles  are 
applicable  to  the  government  of  the  United  States.  It  pos- 
sesses the  same  right  of  sovereignty  and  prerogative  in 
respect  to  the  public  lands.  By  the  right  of  eminent  do- 
main it  is  the  absolute  and  exclusive  owner  of  all  the  pub- 
lic lands  which  it  has  not  alienated  or  appropriated.  It  is 
seized  of  them  to  as  full  an  extent  as  the  British  govern 
ment  can  be  of  its  domain.  It  cannot  be  disseized ;  no 
adverse  possession  is  created  by  an  entry  on  its  lands.  Pos- 
session thus  acquired  can  never  ripen  into  a  right  nor 
authorize  any  defense  against  the  government.  The  gov- 
ernment may  treat  the  person  thus  in  possession  as  an  intru 
der  and  sue  him  in  trespass.  On  the  sale  of  lands  by  the 
United  States  the  patent  transfers  to  the  purchaser  the  entire 
legal  estate,  and  seizin  to  as  full  an  extent  as  the  government 
held  them.'  2  Gilm.  651. 

'It  cannot  be  denied  that  all  the  lands  in  the  Territories 
not  appropriated  by  competent  authority  before  they  were 
acquired,  are  in  the  first  instance  the  exclusive  property  of 
the  United  States,  to  be  disposed  of  to  such  person?,  at  such 
times,  in  such  modes,  as  the  government  may  deem  most 
advantageous  to  the  public,  or  in  other  respects  may  deem 
most  politic.'  Irvine  v.  Marshall,  20  How.  561.'" 

The  government  thus  being  the  owner  of  the  absolute 
title  to  the  public  domain,  it  can  protect  the  same  against 


1872.]  THORP  v.  FREED.  681 

any  trespass  thereon.  Jour  dan  v.  Bar  rait,  4  How.  186.  "  In 
this  country  the  lands  of  the  United  States  lying  within  the 
States  are  held  and  subject  to  be  sold  (under  the  authority 
of  congress),  as  lands  may  be  held  and  sold  by  individual 
owners,  or  by  ordinary  corporations,  and  similar  remedies 
may  be  employed  by  the  United  States,  as  owners,  that  are 
applicable  in  cases  of  others."  Bagnell  v.  Broderick,  13  Pet. 
450.  So  the  government  may  lease  any  portion  of  the  pub- 
lic domain.  United  States  v.  Gratiot,  14  Pet.  526.  And 
the  government  is  entitled  to  the  same  remedies,  to  protect 
such  lands,  as  individuals  have  to  protect  their  lands. 
United  States  v.  Gear,  3  How.  20  ;  Cotton  v.  United  States , 
11  id.  231. 

Then  we  are  safe  in  saying  that  the  government  of  the 
United  States  has  an  absolute  property  in  the  soil  of  the 
public  domain,  and  in  the  waters  flowing  over  or  upon  the 
same,  and  has  a  right  to  sell  both,  and  the  water  flowing 
over,  upon,  or  through  such  lands  passes  with  the  land,  as 
incident  thereto,  and  as  a  part  and  parcel  thereof,  and  a  pur- 
chaser takes  the  whole  of  the  grantee's  title,  both  as  to  the 
land  and  as  to  the  water  thereon. 

In  the  case  before  us,  both  plaintiffs  and  defendants  have 
acquired  titles  to  their  lands  from  the  government,  and  when 
the  title  passed  from  the  government  to  riparian  owners, 
the  rights  acquired  by  prior  appopriation,  as  applied  to 
government  lands  while  the  title  is  yet  in  the  government 
and  the  occupiers  are  mere  tenants  at  will,  is  not  applicable 
and  falls  to  the  ground.  Conceding  the  fact,  that  the 
government  retains  the  right  to  the  iinal  disposition  of  the 
soil  arid  the  waters  flowing  over  the  same,  and  this  result 
must  inevitably  follow,  and  each  purchaser  from  the  govern- 
ment, of  lands  along  a  stream,  acquires  all  the  title  of  the 
grantor,  and  this  title  carries  with  it  property  in  the  soil 
and  waters  naturally  flowing  over  the  same.  If  this  is  not 
the  case  the  prior  appropriate)!1  takes  title  to  the  water  as 
against  the  government. 

We  therefore  conclude  that  the  doctrine-1,  that  lie  who 
tirst  appropriates  the  waters  of  a  stream  can  hold  the  samt» 
VOL.  L— 86. 


682  THORP  D.  FREED.        [Aug.  T., 

as  against  subsequent  riparian  owners,  for  the  purposes  of 
irrigation  and  agriculture,  is  inapplicable  to  lands  situate 
along  the  banks  of  a  stream  where  title  to  such  lands  has 
passed  from  the  government  to  riparian  owners,  for  the  very 
act  of  transferring  the  title  carries  with  it  the  freehold,  and 
this  includes  a  title  to  the  water  that  flows  over  or  along 
the  boundary  of  the  lands  thus  transferred  ;  and  the  act  of 
congress  of  July  26,  1866,  is  not  at  all  in  conflict  with  this 
view  of  the  case.  That  act  is  applicable  to  rights  acquired 
while  the  title  yet  remains  in  the  government,  and  the  occu- 
piers are  mere  tenants  at  will ;  and  then  the  doctrine  of  prior 
appropriation  is  only  applied  when  the  same  is  established 
and  sustained  by  the  local  customs,  laws  and  decisions 
of  the  courts,  and  we  believe  we  have  conclusively  shown 
that  there  are  no  such  local  customs,  laws  and  decisions  in 
force  in  this  Territory. 

And  it  is  safe  to  say  that  the  territorial  legislature  has 
no  power  or  authority  to  enact  a  law  establishing  the  prin- 
ciple contended  for  by  appellants.  The  organic  act,  section 
6,  in  defining  the  powers  of  the  territorial  legislature,  de- 
clares that  "no  law  shall  be  passed  interfering  with  the 
primary  disposal  of  the  soil,"  and,  therefore,  any  law  of 
the  legislature  that  in  any  manner  depreciates  the  value  or 
worth  of  the  soil,  and  the  property  of  the  United  States 
therein,  is  such  an  interference  with  its  disposal  as  would 
render  any  such  law  nugatory  and  void.  And  if  the  doc- 
trine of  prior  appropriation,  and  the  supposed  rights  inci- 
dent thereto,  as  it  manifestly  does,  causes  the  lands  of  the 
government  to  become  utterly  worthless,  making  it  impos- 
sible to  dispose  of  the  same,  where  before  the  application 
of  such  doctrine  or  the  accruing  of  such  supposed  rights 
said  lands  were  valuable,  such  legislation  would  be  in  con- 
flict with  the  rights  of  the  United  States,  and  a  palpable 
violation  of  the  organic  act,  and  therefore  void. 

If  this  decision  necessitates  the  adoption  of  the  common 
law  respecting  running  water,  and  the  manner  in  which  the 
same  may  be  used  and  the  rights  incident  thereto,  we  can 
see  no  objection  to  it  on  that  account.  It  may  operate  un- 


1872.]  THORP  v.  FREED.  683 

justly  in  certain  peculiar  cases,  but  as  a  general  rule  it 
will  secure  justice  and  equity.  Whenever  any  old  and  long- 
established  rule  or  principle  of  law  is  to  be  modified  or 
changed,  it  should  be  done  with  the  greatest  care  and  pru- 
dence, for  such  rule  or  principle  generally  speaks  the  wis- 
dom of  long  experience,  much  thought  and  much  learning, 
and  should  not  be  inconsiderately  trilled  with.  We  believe 
our  Territory  should  not  form  an  exception  to  the  just  opera- 
tion of  the  rules  and  principles  that  govern  and  control  the 
rights  and  remedies  incident  to  running  water.  We  have 
arrived  at  this  conclusion  after  much  thought  and  study, 
having  in  view  solely  the  interests  of  our  people  and  the 
prosperity  of  the  Territory. 

In  this  connection,  we  desire  to  call  attention  to  a  late  de- 
cision of  the  supreme  court  of  the  State  of  Nevada,  as  to 
the  application  of  the  common  law  to  the  waters  of  that 
State,  and  it  is  believed  that  this  decision,  and  the  princi- 
ples arid  reasons  thereof,  are  peculiarly  applicable  to  this 
Territory.  We  refer  to  the  case  of  VansicJcle  v.  Haines, 
before  cited.  In  that  case  the  court  say,  in  speaking  of  the 
applicability  of  the  common  law  to  running  streams  in  the 
irrigating  regions  of  that  State  :  "  It  (the  common  law)  is  a 
rule  which  gives  the  greatest  right  to  the  greatest  number, 
•luthorizing  each  to  make  a  reasonable  use  of  it  (the  water), 
providing  he  does  no  injury  to  the  others  equally  entitled 
to  it  with  himself ;  whilst  the  rule  of  prior  appropriation 
here  advocated  would  authorize  the  first  person  who  might 
choose  to  make  use  of  or  divert  a  stream  to  use  or  even  to 
waste  the  whole,  to  the  utter  ruin  of  others  who  might  wish 
it.  The  common  law  does  not.  as  seems  to  be  claimed,  de- 
prive all  of  the  right  to  use,  but,  on  the  contrary,  allows 
all  riparian  proprietors  to  use  it  in  any  manner  not  incom- 
patible with  the  rights  of  others.  When  it  is  said  that  a 
proprietor  has  the  right  to  have  a  stream  continue  through 
his  land,  it  is  not  intended  to  be  said  that  he  has  the  right 
to  all  the  water,  for  that  would  render  the  stream,  which 
belongs  to  all  the  proprietors,  of  no  use  to  any.  What  is 
meant  is,  that  no  one  can  absolutely  divert  the  whol<- 


684  THORP  v.  FREED.         [Aug.  T., 

stream,  but  must  use  it  in  such  manner  as  not  to  injure 
those  below  him.  As  the  right  is  equal  in  each  owner  of 
the  land,  because,  naturally,  each  owner  can  equally  enjoy 
it,  so  one  must  exercise  that  right  in  himself  without  dis- 
turbing any  other  above  or  below  in  his  natural  advantages.'' 

The  opinion  rendered  in  the  case  at  bar  seems  to  be  based 
upon  the  proposition,  that  water  for  the  purposes  of  irriga- 
tion could  not  be  taken  from  a  stream,  under  the  rules  and 
regulations  of  the  common  law.  We  believe  this  is  a  mis- 
taken notion.  In  the  case  of  Elliott  v.  TJie  Fitcliburg 
Railroad  Company,  10  Gush.  193,  Chief  Justice  SHAW 
says :  "  The  right  of  flowing  water  is  now  well  settled  to  be  a 
right  incident  to  property  in  law  ;  it  is  a  right  publici  juris, 
of  such  character,  that  whilst  it  is  common  and  equal  to  all 
through  whose  land  it  runs,  and  no  one  can  obstruct  or 
divert  it,  yet,  as  one  of  the  beneficial  gifts  of  Providence, 
each  proprietor  has  a  right  to  a  just  and  reasonable  use  of  it 
as  it  passes  through  his  land,  and  so  long  as  it  is  not  wholly 
obstructed  or  diverted,  or  no  larger  appropriation  of  the 
water  running  through  it  is  made  than  a  just  and  reason- 
able use,  it  cannot  be  said  to  be  wrongful  or  injurious  to  a 
proprietor  lower  down.  What  is  such  just  and  reasonable 
use  may  often  be  a  difficult  question,  depending  on  various 
circumstances.  *  *  *  It  has  sometimes  been  made  a 
question  whether  a  riparian  proprietor  can  divert  water 
from  a  running  stream  for  purposes  of  irrigation.  *  * 
That  a  portion  of  the  water  of  a  stream  may  be  used  for 
the  purposes  of  irrigating  land,  we  think,  is  well  established 
as  one  of  the  rights  of  the  proprietors  of  the  soil  along  or 
through  which  it  passes.  Yet  a  proprietor  cannot,  under 
color  of  that  right,  or  for  the  actual  purpose  of  irrigating 
his  own  land,  wholly  obstruct  or  divert  the  water-course,  or 
take  such  an  unreasonable  quantity  of  water,  or  make  such 
an  unreasonable  use  of  it,  as  to  deprive  other  proprietors 
of  the  substantial  benefits  which  they  might  derive  from  it 
if  not  diverted  or  used  unreasonably." 

The  foregoing  principles  are  declared  in  many  decisions, 
and  we  are  therefore  led  to  believe  that  at  common  law, 


1872.]  THORP  o.  FREED.  686 

water  for  the  purposes  of  irrigation,  under  the  foregoing 
restrictions  and  limitations,  can  be  taken  from  a  stream  and 
used  to  irrigate  the  lands  through  which  such  stream  passes. 

The  decisions  in  California,  which  are  relied  upon  to 
establish  the  doctrine  of  prior  appropriation,  are  entirely 
inapplicable  to  this  case,  for  those  decisions  were  made  in 
cases  where  the  government  yet  owned  the  title  to  the  land, 
and  this  fact  was  the  controlling  feature  in  the  cases.  In  the 
(.•use  of  If  win  v.  Phillips  like  court  says:  ''  It  is  insisted  by 
the  appellants  that  in  this  case  the  common-law  doctrine 
must  be  invoked  which  prescribes  that  a  water-course  must 
be  allowed  to  flow  in  its  natural  channel.  But  upon  an  ex- 
amination of  the  authorities  which  support  that  doctrine,  it 
will  be  found  to  rest  upon  the  fact  of  the  individual  rights 
of  landed  proprietors  upon  the  stream,  the  principle  being, 
both  at  the  civil  and  common  law,  that  the  owner  of  lands  on 
the  banks  of  a  stream  owns  to  the  middle  of  the  stream, 
and  has  the  right  by  virtue  of  his  ownership  to  use  the 
water  in  its  pure  and  natural  condition.  In  this  case,  the 
lands  are  the  property  either  of  the  State  or  of  the  United 
States,  and  it  is  not  necessary  to  decide  to  which  they  belong 
for  the  purposes  of  this  case,"  and  the  court  shows  that 
because  the  parties  were  not  the  owners  of  the  soil  the  com- 
mon-law rule  did  not  apply.  In  the  case  of  Crandall  v. 
Woods,  8  Cal.  141,  Justice  MURRAY  says:  "Having  thus 
stated  the  fundamental  principles  upon  which  this  right  is 
founded,  it  is  evident  that  the  only  difficulty  in  the  case 
arises :  first,  from  the  fact  that  the  defendant  is  not  the 
owner  of  the  fee  of  the  land,  but  that  title  to  it  is  in  the 
government  of  the  United  States."  And  the  whole  decision 
turned  upon  the  fact  that  the  title  still  remained  in  the 
government. 

In  the  case  at  bar,  the  government  has  parted  with  its 
title,  and  the  plaintiffs  and  defendants  are  the  owners  in 
tee  of  their  respective  parcels  of  land,  and  this  fact  con- 
trols the  case  and  brings  it  within  the  common-law  rule,  as 
to  the  rights  of  the  owners  of  lands  along  the  banks  of  a 
stream. 


386  THORP  t>.  FREED.  [Aug.  T. 

The  appellants  in  their  argument  invite  us  to  look  at 
the  consequences  to  the  public  and  to  the  Territory  at  large, 
if  the  strange  decision  of  the  court  below  is  affirmed.  We 
do  not  admire  the  practice  of  going  outside  the  case  to  find 
arguments  in  support  of  a  desired  decision,  and  such  argu- 
ments can  have  no  weight  here,  for  every  citizen  is  entitled 
to  his  rights,  as  the  law  defines  them,  no  matter  what  the 
consequences  may  be  ;  and  in  such  a  case  as  this,  and  in  no 
other  case,  can  a  citizen  or  a  class  of  citizens  be  robbed  of 
his  or  their  rights,  or  of  their  property,  in  order  to  secure 
to  the  Territory  an  imaginary  prosperity.  But  since  this 
invitation  has  been  given,  and  we  are  asked  to  go  outside 
the  case  and  look  at  the  consequences  of  our  decision,  we 
will  for  one  moment  do  so. 

It  is  well  known  to  any  individual  who  has  resided  in  this 
Territory  for  one  season,  that  there  is  not  sufficient  available 
water  in  the  Territory  for  the  purposes  of  irrigation,  and  if 
the  doctrine  of  prior  appropriation,  as  contended  for  by 
appellants,  is  to  prevail,  long  before  one-tenth  part  of  the 
tillable  land  in  the  Territory  is  subjected  to  cultivation  the 
entire  available  water  of  the  country  will  have  been  monop- 
olized and  owned  by  a  few  individuals,  thereby  defeating 
any  advance  in  the  agricultural  prosperity  of  the  country, 
and  thereby  directly  repelling  immigration  thither.  Even 
now,  with  a  very  sparse  population,  the  contentions  over 
water  for  the  purposes  of  irrigation,  and  a  monopoly  thereof, 
furnish  a  fruitful  source  of  litigation.  And,  in  the  future^ 
when  the  scant  supply  of  water  shall  have  been  all  appro- 
priated and  OAvned  by  a  few  individuals,  and  our  valleys 
shall  have  been  drained  of  all  their  waters  for  the  benefit  of 
a  few  men.  what  is  to  become  of  the  school  lands  of  the  Ter- 
ritory ?  By  the  munificent  donation  of  the  general  govern- 
ment, sections  16  and  36  in  every  township  in  the  Territory, 
making  thousands  upon  thousands  of  acres  in  the  aggregate, 
are  reserved  and  set  apart  for  school  purposes.  Here  is  laid 
the  foundation  for  a  fund  that  will  be  ample  and  sufficient 
for  all  time  to  come,  to  insure  to  every  child  of  our  Terri- 
tory or  State  a  thorough  education.  But  if  the  school  lands 


1872.]  THOBP  v.  FREED.  687 

can  be  drained  of  every  drop  of  water,  and  if  the  water  that 
naturally  flows  through  or  upon  such  lands  can  become 
the  private  property  of  the  individual  who  happens  to 
locate  above  or  below  these  school  sections,  as  the  doctrine 
of  prior  appropriation  would  clearly  authorize  and  permit, 
then  the  school  lands  of  Montana  would  become  of  no  value 
whatever,  fn  such  case  they  are  not  now,  and  never  will 
be,  worth  OIK-  mill  per  acre.  The  doctrine  of  prior  appro- 
priation contended  for  makes  our  school  lands  a  desert, 
and  this  magnificent  donation  to  our  children,  and  to  all 
their  posterity,  is  an  inheritance  of  sand  and  sage  brush  — 
a  barren,  worthless  desert. 

What  becomes  of  the  railroad  land  grant  through  this 
Territory  ?  Common  fairness  would  dictate  that  we  should 
not,  by  our  courts  or  by  the  legislature,  indirectly  defeat 
vested  rights.  And  if  there  is  one  thing  more  than  another 
that  we  need  to  develop  the  untold  resources  of  this  country, 
it  is  a  railroad.  But  if  we  destroy  the  land  grant  already 
given  for  the  purposes  of  a  road,  or  do  what  is  equivalent 
thereto,  make  it  worthless,  can  we  hope  that  a  railroad  will 
be  built  \  We  might  just  as  well  repeal  the  law,  giving  any 
railroad  in  this  Territory  land,  as  to  take  the  waters  from 
such  lands  ?  The  effect  would  be  precisely  the  same  as  in 
either  case,  and  either  would  forever  cripple  the  prosperity 
of  the  Territory. 

What  says  the  government  of  the  United  States  to  the 
doctrine  that  renders  the  public  domain  of  Montana  utterly 
of  no  value  ?  The  doctrine  of  prior  appropriation  robs  the 
general  government  of  its  property,  by  making  the  govern- 
ment lands  of  no  value.  And  all  these  consequences,  so 
disastrous  in  auy  view,  are  to  be  visited  upon  Montana, 
that  a  few  individuals  may  have  what  does  not  now,  and 
never  did,  belong  to  them. 

Judgment  affirmed. 


688  TAYLOR  v.  HOLTEE.  [Aug.  T., 


TAYLOR  et  al.,  appellants,  «.  HOLTER  et  al.,  respondents. 

DEED  —  description  of  property  — fork  of  gulcii — parol  evidence.  Parol  evidence 
is  not  admissible  to  show  that  the  grantors  in  a  deed,  in  which  the  property 
is  described  as  "all  the  water  of  the  right-hand  fork  of  Oro  Fiiio  gulch/' 
intended  to  convey  the  water  of  the  left-hand  fork  of  the  same  gulch. 

CASE  AFFIRMED.  The  case  of  Donnell  v.  Humphreys,  ante,  614,  holding  that 
parol  evidence  may  be  offered  to  locate  the  deed  upon  laud  conveyed, 
affirmed. 

DEED  —  breach  of  warranty  —  measure  of  damages.  The  measure  of  damages 
against  grantors,  who  have  warranted  the  title  and  agreed  to  defend  the 
same  in  the  deed,  is  the  value  of  the  property  at  the  time  the  conveyance 
is  made  and  interest  thereon,  and  the  necessary  costs,  expenses  and  reason- 
able counsel  fees  incurred  in  defending  the  title. 

DEED  —  consideration — damages — gold  dust  —  dollars.  In  an  action  to  recover 
damages  for  the  breach  of  warranty  in  a  deed,  the  consideration  of  w-hich 
is  "two  thousand  dollars  in  clean  gulch  gold  dust,"  only  $2,000  in  currency 
can  be  collected  as  damages  for  the  value  of  the  consideration. 

DEED  —  interpretation —  consideration  —  words  of  bargain  and  sale.  The  words 
"remised,  released  and  quit-claimed"  in  a  deed,  in  which  the  con- 
sideration is  the  full  value  of  the  property,  and  the  grantors  have  wal- 
ranted  the  title,  are  words  of  bargain  and  sale,  which  convey  the  property 
described. 

TRUSTEE  —  liability  for  personal  warranty  of  title.  The  grantors  of  a  warranty 
deed,  who  held  the  title  as  trustees  for  a  third  party,  to  whom  the  con- 
sideration was  paid,  are  liable  on  their  personal  covenants  in  the  deed. 

DEED — acknowledgment.  A  deed  which  is  not  acknowledged  or  recorded  is 
good  between  the  parties. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

THE  court,  WADE,  J.,  granted  a  nonsuit  in  this  case.  The 
facts  are  stated  in  the  opinion. 

E.  W.  &  J.  K.  TOOLE  and  CHUMASERO  &  CHADWICK,  fop 

appellants. 

Appellants  should  have  been  permitted  to  introduce  their 
testimony  to  explain  and  interpret  the  description  in  the 
deed  of  respondents.  Prominent  landmarks  are  controlling 
points  as  to  description.  In  this  case  the  monuments  are 
fixed  and  certain,  and  the  actual  possession  of  the  identical 
property  was  delivered  by  respondents.  Nourse  v.  Lloya,, 
^  Penn.  229;  Frost  v.  Spaulding,  19  Pick.  445;  Moss  v. 


1872.]  TAYLOK  v.  HOLTEK.  689 

Shear,  30  Cal.  479  ;  Waterman  v.  Johnson,  13  Pick.  261 ; 
Owen  v.  Bartholomew,  9  id.  520 ;  DonneU  v.  Humphreys, 
ante,  514 ;  Jackson  v.  Loomis,  18  Johns.  81  ;  Reamer  v. 
Nesmith,  34  Cal.  624 ;  Vance  v.  Fore,  24  id.  446  ;  Irwin  v. 
CTmtaZ  tftofes,  16  How.  (U.  S.)  522. 

The  deed  of  respondents  is  the  same  as  that  of  bargain 
and  sale.  The  grantors  intended  to  convey  the  estate  with- 
out any  limitation  or  reservation.  The  deed  supports  the 
covenant  of  warranty  attached  to  it.  The  warranty  woi  Id 
be  without  meaning  unless  the  deed  is  construed  as  claimed 
by  appellants.  The  intention  of  the  grantors  must  govern. 
The  deed  does  not  convey  any  right,  title  or  interest,  but 
the  property  itself.  1  Coke  on  Lit.  60,  266 ;  4  Kent,  458, 
460  ;  Russell  v.  Coffin,  8  Pick.  150 ;  Lynch  v.  Livingston. 
2  Seld.  434  ;  Jackson  v.  Root,  18  Johns.  78  ;  Morrison  v. 
Wilson,  30  Cal.  347  ;  2  Pars,  on  Cont.  184,  185  ;  McNear  v. 
McGomber,  18  Iowa,  12  ;  Williamson  v.  Test,  24  id.  138. 

The  measure  of  damages  in  this  case  is  the  consideration 
money  paid  by  appellants  with  legal  interest  thereon,  the 
value  of  the  improvements  placed  on  and  in  connection 
with  the  property  conveyed  in  carrying  out  the  object  of  the 
grant,  the  costs  of  the  suit  in  which  appellants  were  evicted, 
and  the  fees  paid  appellants'  attorneys  for  defending  such 
suit.  Sedgw.  on  Dam.  174  ;  Gore  v.  Brazier,  3  Mass.  542  ; 
Caswell  v.  Wendell,  4  id.  108 ;  Bigelow  v.  Jones,  id.  513 ; 
Sterling  v.  Peet,  14  Conn.  254. 

When  it  appears  from  the  deed  that  the  grantor  knows 
that  the  grantee  is  buying  land  to  place  valuable  improve- 
ments thereon,  and  there  is  a  breach  of  the  covenant  of  war- 
ranty in  the  deed,  the  grantee  will  be  entitled  to  recover  the 
sum  expended  in  placing  such  improvements  on  the  land. 
Pitcher  v.  Livingston,  4  Johns.  6  ;  DimmicJc  v.  Lockwood. 
10  Wend.  149;  'staats  v.  Ten  EycJc,  3  Cai.  Ill  ;  Sedgw. 
on  Dam.  174 ;  Itawle  on  Cov.  95-100  ;  Sterling  v.  Peet. 
14  Conn.  254. 

Respondents  are  bound  by  their  personal  covenants  in 
the  deed.     Their  character  as  trustees  does  not  affect  their 
liability  in  this  action.     Respondents  did  not  disclose  their 
VOL.  I.  — 87 


TAYLOB  v.  HOLTEK.  [Aug.  T., 

trust.     Hill  on  Trust.  790 ;   Oreason  v.  Keteltas,  17  N. 
Y.  491. 

SHOBER  &  LOWRY  and  W.  F.  SANDERS,  for  respondents. 

The  contract  sued  on  is  a  release  and  not  a  conveyance. 
It  does  not  convey  any  thing.  It  is  not  acknowledged. 
Acts  1865,  479,  §§  80-88.  The  deed  does  not  furnish  the 
foundation  of  an  action. 

The  testimony  offered  by  appellants  was  not  competent. 
Appellants  wished  to  prove  that  while  one  water-right  was 
described  in  their  deed,  another  was  conveyed,  from  which 
they  had  been  disseized.  The  property  was  described  by 
the  laws  of  nature. 

The  deed  simply  abandoned  to  some  one  the  property.  The 
form  of  expression  in  the  deed  is  the  lowest  that  can  be  used 
in  transferring  an  estate. 

Appellants  took  by  the  release  the  interest  of  respondents 
in  the  property.  The  covenant  of  warranty  does  not  enlarge 
the  estate  conveyed,  and  affects  only  the  interest  that  is  con- 
veyed. The  deed  warrants  that  the  estate  actually  pos- 
sessed by  respondents  is  completely  extinguished.  We 
have  no  statute  of  uses,  and  the  New  York  decisions, 
cited  by  appellants,  do  not  apply  to  the  release  in  this  case. 
2  Chitty's  Black.  260,  "  Release  ;"  Gee  v.  Moore,  14  Cal.  472 ; 
Kimball  v.  Semple,  25  id.  452  ;  Acts  1865, 487,  §  50 ;  3  Washb. 
on  Real  Prop.  404  ;  4  Kent,  283  ;  Ohio  Dig.  310-316  ;  Sweet 
v.  Brown,  12  Mete.  175  ;  Blanchard  v.  Brooks,  12  Pick.  47  : 
Powers  v.  Ware,  2  id.  458. 

The  complaint  of  appellants  does  not  therefore  state  facts 
sufficient  to  constitute  a  cause  of  action. 

Appellants  seek  to  vary  the  terms  of  the  deed  by  oral 
testimony,  and  prove  a  liability  that  their  pleadings  show 
did  not  exist.  Such  evidence  is  inadmissible.  No  action 
can  be  maintained  for  a  failure  of  title  of  a  fork  of  a  stream 
that  was  not  actually  embraced  in  the  deed.  Tymason  v. 
Bates,  14  Wend.  672. 

WADE,  C.  J.     This  is  an  appeal  from  a  judgment  of  n;n 
suit  in  the  court  below.     The  suit  was  brought  to  recover 


1872.]  TAYLOR  «.  HOLTER.  691 

damages  for  breach  of  warranty  in  a  deed  from  defendants 
to  plaintiffs,  conveying  a  certain  water-right  situate  in  Oro 
Fino  gulch,  Lewis  and  Clarke  county. 

The  deed  in  question  is  in  the  words  and  figures  follow- 
ing, to  wit : 

"This  indenture  made  the  fifth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
eight,  between  Edward  M.  Hoyt  and  A.  M.  Holter,  of 
Helena,  Lewis  and  Clarke  county,  Montana  Territory,  par- 
ties of  the  first  part,  and  Jesse  Taylor,  Jeremiah  Smith  and 
Greorge  Cleveland,  parties  of  the  second  part,  witnesseth : 
That  the  said  parties  of  the  first  part,  for  and  in  considera- 
tion of  two  thousand  dollars,  clean  gulch  gold  dust,  to  them 
in  hand  paid  by  said  parties  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  hath  remised,  released 
and  quit-claimed  unto  the  said  parties  of  the  second  part, 
and  to  their  heirs  and  assigns,  all  that  certain  water-right 
lying  and  being  in  the  county  of  Lewis  and  Clarke,  Mon- 
tana Territory,  and  bounded  and  particularly  described  as 
follows,  to  wit :  A  certain  water  privilege  the  right  of  which 
is  now  vested  in  us,  described  as  follows  :  All  the  water  of 
the  right-hand  fork  of  Oro  Fine  gulch,  at  and  above  a  point 
upon  said  right-hand  fork,  where  the  head  of  a  ditch  will 
strike  it,  which  will  convey  the  waters  of  said  right-hand 
fork  of  said  Oro  Fino  gulch  into  a  ditch  now  owned  by 
Taylor,  Smith  and  Cleveland,  conveying  the  waters  of  the 
left-hand  fork  of  Oro  Fino  gulch  into  Tucker  gulch  ;  said 
point  is  supposed  to  be  near  some  cabins  about  a  quarter  of 
a  mile  above  Unionville.  The  said  water-right  hereby  con- 
veyed, including  the  rigl.it  of  the  said  parties  of  the  second 
part,  at  any  time  they  may  see  proper  to  carry  and  convey  the 
said  water  of  the  said  right-hand  fork  of  said  Oro  Fino  gulch 
to  Tucker  gulch,  or  sucli  other  gulch  or  gulches  or  raining 
ground  as  the  said  parties  of  the  second  part  may  elect  to 
carry  the  same,  to  be  by  them  used  or  disposed  of  to  their 
sole  use  and  benefit  ;  together  with  all  and  singular  the  tene- 
ments, hereditaments,  and  appurtenances  thereto  belonging 
or  in  any  wise  appertaining  :  ainl  ihf  reversion  and  rever- 


692  TAYLOR  o.  HOLTER.  [Aug.  T., 

sions,  remainder  and  remainders,  rents,  issues  and  profits 
thereof,  and  also  all  the  estate,  right,  title,  interest  we  now 
have  in  said  property,  possession,  claim  and  demand  what- 
soever, as  well  in  law  as  in  equity,  of  the  said  parties  of  the 
first  part,  of,  in  or  to  the  said  premises,  and  every  part  arid 
parcel  thereof  with  the  appurtenances.  To  have  and  to  hold 
all  and  singular  the  said  premises,  together  with  the  appur- 
tenances unto  the  said  parties  of  the  second  part,  their  heirs 
and  assigns  forever,  and  we  hereby  covenant  and  agree  to 
warrant  and  defend  the  title  to  the  same  against  all  claims 
of  all  persons  whomsoever,  whether  in  law  or  equity. 
In  witness  whereof  the  said  parties  of  the  first  part  hath 

hereunto  set  their  hands  and  seals  the  day  and  year 

first  above  written. 

EDWARD  M.  HOYT.  [L.  s.] 
A.  M.  HOLTER.         '  [L.  s.  ] 

Signed,  sealed  and  delivered  in  ) 
presence  of  Amos  T.  Laird,      j 

TERRITORY  OF  MONTANA,      /        . 
Gounty  of  Lewis  and  Clarke,  \ 

On  this  5th  day  of  December,  1868,  personally  appeared 
before  me,  A.  B.  Babcock,  of  the  aforesaid  Territory,  Ed- 
ward M.  Hoyt  and  A.  M.  Holter,  and  acknowledged  under 
oath  that  they  and  each  of  them  signed  and  jointly  did 
execute  the  within  instrument,  of  their  own  free  will. 

A.  B.  BABCOCK, 
Notary  Public. 

Upon  the  trial  of  the  cause  to  a  jury,  the  plaintiffs,  to 
maintain  the  issues  on  their  part,  offered  the  foregoing  deed 
in  evidence,  and  the  same  was  received,  and  read  to  the  jury. 
It  will  be  seen  that  this  deed  is  a  conveyance  of  all  the 
waters  of  the  right-hand  fork  of  Oro  Fino  gulch.  The  plain- 
tiffs then  asked  the  following  question  of  the  witness  Tay- 
lor, one  of  the  grantees  in  the  deed.  "  What  was  intended 
by  the  term  right-hand  fork  of  Oro  Fino  gulch  ? "  Which 
question  was  objected  to,  and  objection  sustained.  The 


1872.]  TAYLOR  v.  HOLTEK.  69'6 

plaintiffs  then  proposed  to  prove,  by  competent  witnesses, 
that  the  plaintiffs  became  the  owners  of  the  right-hand  fork 
of  Oro  Fino  gulch  in  the  year  1866,  as  were  so  the  owners 
thereof  at  the  time  of  the  making  and  execution  of  the  deed 
from  defendants  to  plaintiffs,  on  the  5th  day  of  December, 
1868 ;  that  said  plaintiffs  at  that  time  were  the  owners  oi 
a  ditch  conveying  the  waters  of  same  right-hand  fork  of 
Oro  Fino  gulch  into  Tucker  gulch  ;  that  the  cabins  referred 
to  in  said  description  are  situate  on  the  left-hand  fork  of 
said  gulch,  about  one-fourth  of  a  mile  above  Unionville, 
and  that  immediately  after  the  execution  of  the  deed  from 
defendants  to  plaintiffs  herein  set  forth,  an  agent  of  defend- 
ants, the  grantors  in  said  deed,  delivered  to  the  plaintiffs, 
the  grantees  therein,  the  waters  of  the  fe/2-hand  fork  of  said 
Oro  Fino  gulch,  and  other  testimony  of  like  character.  To 
the  introduction  of  which  testimony  the  defendants 
objected,  which  objection  was  sustained;  whereupon  plain- 
tiffs submitted  to  a  judgment  of  nonsuit,  and  appealed  to 
this  court. 

The  object  and  purpose  of  this  proof  was  to  show  that 
the  grantors  intended  to  convey,  and  the  grantees  intended 
to  receive  by  virtue  of  the  deed  in  question,  the  waters  of 
the  left-hand  fork  of  Oro  Fino  gulch,  instead  of  the  waters 
of  the  right-hand,  fork,  as  described  in  the  deed. 

This  question  is  presented  for  solution  and  decision. 
Can  the  words  in  a  deed  be  altered  or  changed  by  extrinsic 
evidence?  In  other  words,  where  parties  have  con- 
veyed all  the  waters  of  the  right-hand  fork  of  a  cer- 
tain gulch  or  stream,  is  parol  extrinsic  proof  admissible  to 
show  that  they  intended  to  convey  all  the  waters  of  the  left- 
hand  fork  of  such  stream  ? 

The  enunciation  of  a  few  general  principles,  as  derived 
from  the  books  and  authorities,  may  be  of  use  in  arriving 
at  a  safe  and  satisfactory  answer  to  the  question  proposed. 

It  lias  long  been  settled,  that  where  parties  have  deliber- 
ately put  their  contracts  in  writing  in  such  terms  as  import 
a  le^al  obligation  without  uncertainty  or  ambiguity,  as  to 
the  object.  natnn>  and  oxtrnt  of  their  agreements,  it  is  con 


694  TAYLOR  v.  HOLTEK.  [Aug.  T., 

clusively  presumed  that  tlie  whole  of  the  contract  was 
reduced  to  writing  ;  and  all  oral  testimony  as  to  what  was 
said  before,  at  the  time  of,  or  after  it  is  completed,  is 
rejected  because  it  would  tend  to  substitute  an  oral  for  a 
written  contract.  This  rule  is  not  contradicted  or  varied 
by  the  fact,  that  extrinsic  parol  evidence  is  always  admissi- 
ble to  give  effect  to  a  written  instrument,  by  applying  it  to 
its  proper  subject-matter,  by  proving  the  circumstances 
under  which  it  was  made,  thereby  enabling  the  court  to  put 
itself  in  the  place  of  the  parties  with  all  the  information 
possessed  by  them,  the  better  to  understand  the  terms 
employed  in  the  contract,  and  to  arrive  at  the  intention  of 
the  parties. 

Instruments  are  to  be  interpreted  according  to  their  sub- 
ject-matter, and  parol  evidence  may  be  resorted  to  in  order 
to  ascertain  the  nature  and  qualities  of  the  subject,  as  a 
just  medium  of  interpreting  the  language  of  the  parties, 
and,  also,  as  a  just  foundation  for  giving  the  instrument  an 
interpretation,  when  considered  relatively,  different  from 
that  which  it  would  receive  if  considered  in  the  abstract. 

It  is  necessary  to  the  validity  of  a  grant  that  the  thing 
granted  should  be  capable  of  being  distinguished  from  all 
other  things  of  the  kind,  but  it  is  not  necessary  that  the  de- 
scription should  be  such  as  to  identify  the  object  without  the 
aid  of  extrinsic  testimony,  and  when  the  description  alludes 
to  facts  beyond  the  deed,  parol  evidence  may  be  offered, 
not  to  contradict  the  description,  but  to  locate  the  deed  upon 
the  land.  And  this  principle  was  the  foundation  of  the 
decision  in  the  case  of  Donnell  v.  HumpJireys,  ante,  514. 

These  rules  and  principles  apply  to  the  interpretation  of 
instruments  that  are  ambiguous  and  uncertain  upon  theii 
face,  as  if  I  should  convey  to  A  my  house  and  lot  in  Helena, 
and  I  was  the  owner  of  two  houses  and  lots  therein  ;  parol 
evidence  would  be  admissible  to  show  which  of  the  two 
houses  I  intended  to  convey.  But  if  I  conveyed  my  brick 
house  on  Main  street,  can  parol  proof  be  introduced  to 
show  that  I  intended  to  convey  my  wooden  house  on  Rod- 
ney street  ? 


1872.]  TAYLOK  c.  HOLTER.  695 

The  description  contained  in  the  deed  in  question  is  not 
in  any  sense  ambiguous  or  uncertain.  It  is  "all  the  water 
of  the  right-hand  fork."  This  is  direct,  simple  and  plain. 
Can  we  go  outside  of  the  deed  and  create  an  ambiguity, 
and  then  apply  the  language  used  to  a  subject  entirely 
different  and  directly  contradictory  to  the  subject  men- 
tioned in  the  deed  ? 

It  is  believed  that  the  following  is  the  true  rule  upon  the 
subject,  which  rule  is  gathered  from  a  review  of  the  authori- 
ties upon  the  question,  so  far  as  we  have  been  able  to  read 
them :  The  intent  of  the  parties  must  be  gathered  from 
what  is  written  rather  than  from  parol  evidence,  but  the 
language  of  the  instrument  may  be  construed  by  the  light 
of  surrounding  circumstances,  and,  so  far  as  possible,  the 
court  ma}r  put  itself  in  the  place  of  the  parties,  and  may 
interpret  the  language  from  this  stand-point,  but  nothing 
can  be  added  to  or  taken  from  the  written  words. 

When  it  is  said  that  courts  may  put  themselves  in  the 
place  of  the  parties,  and  interpret  the  language  used  by  the 
light  of  surrounding  circumstances,  it  is  necessary,  in  the 
first  place,  that  such  language  be  ambiguous  and  uncer- 
tain ;  and,  in  the  next  place,  no  interpretation  can  be  given 
whereby  the  language  can  be  altered  or  changed. 

If  the  language  is  ambiguous  it  may  be  shown  what  is 
intended,  but  this  intention,  when  so  shown,  shall  not  con- 
tradict, change  or  vary  the  language  used.  The  language 
of  the  instrument  shall  be  applicable  to  the  intention 
shown  by  parol. 

If  this  rule  is  sustained  by  the  authority,  then  parol 
proof  never  could  be  introduced  to  show  that  a  grantor  in- 
tended to  convey  the  "  left-hand  fork"  when  he  did,  in 
fact,  convey  the  "  ri<7^-hand  fork." 

One  of  the  leading  cases  referred  to  by  appellants'  coun- 
sel is  that  of  Reamer  v.  Nesmith,  34  Cal.  624.  The  de- 
scription contained  in  the  deed  in  this  case  was  as  follows : 
*'  All  that  certain  piece  of  mining  ground  situate  in  Comer's 
Field,  on  Swindle  Hill,  south  of  the  road  leading  from 
Yanke'-  Jim's  to  Todds'  Valley,  known  as  the  Booth  claims, 


«96  TAYLOR  ».  HOLTEB.  [Aug.  T., 

and    marked    by  stakes  and  corners,   four  hundred  feet 
front,  more  or  less,  running  back  into  the  JiilV 

It  will  be  seen  that,  although  there  are  many  calls  in  this 
description,  it  finally  reaches  this  said  claim  known  as 
the  Booth  claims,  marked  by  stakes  and  corners,  and  four 
hundred  feet  front,  more  or  less,  and  running  back  into 
the  hill.  And  the  court  say:  We  are  unable  to  per- 
ceive why  this  description  is  not  applicable  to  the  ground, 
and  sufficiently  certain  for  all  purposes  of  description. 
But  one  of  the  chief  questions  determined  in  the  case  was, 
whether  parol  proof  was  competent  to  show  what  was 
meant  by  the  terms  known  as  the  "Booth  claims,"  and  "  run- 
ning back  into  the  hill."  These  terms  and  phrases  are  am- 
biguous and  uncertain ;  and  the  court  very  properly  say, 
that  it  was  competent  to  show  the  intention  of  the  parties 
in  using  these  words.  But  we  hold  that  no  intention  could 
be  shown  that  would  destroy  the  words  themselves.  The 
words  being  ambiguous,  extrinsic  evidence  can  apply  them 
to  their  proper  subject,  and,  when  so  applied,  the  words 
must  still  be  applicable  to  that  subject.  And,  although 
this  is  true,  yet  it  would  not  be  true  that  proof  could  be 
introduced  to  show  that  the  parties,  when  they  said  the 
claim  known  as  "Booth's  claim,1'  intended  John  Smith's 
claim,  or  when  they  said  "running  back  to  the  hills,"  they 
intended  to  say  running  forward  to  the  river.  The  case  does 
not  support  the  proposition  that  parol  extrinsic  evidence 
can  be  introduced  to  explain  the  terms  of  an  unambiguous 
deed,  and  to  make  parties  say  the  "right-hand  fork"  when 
they  intended  the  "left-hand  fork." 

Neither  is  the  proposition  supported  by  the  case  of  Jack- 
son and  McNaughten  v.  Loomis,  18  Johns.  81,  where,  in  a 
deed,  the  premises  were  described  as  lot  No.  51,  in  the  sec- 
ond division  of  a  patent  bounded  as  follows  :  Beginning  at 
a  stake  and  stones,  etc.,  giving  monuments,  courses  and 
distances.  It  was  proved  that  the  grantor  at  the  time  of  the 
conveyance  owned  lot  No.  50,  in  the  same  patent,  and  that 
the  monuments,  courses  and  distances  exactly  correspond 
with  those  found  on  the  land,  and  that,  unless  this  was  con- 


1872.]  TAYLOR  v.  HOLTER.  «97 

veyed  by  the  deed  it  would  be  inoperative  and  of  no  effect. 
The  court  held  that  the  words  "lot  No.  51"  might  be 
rejected  as  surplusage,  the  description  of  the  premises 
being  sufficiently  certain  without  these  words  ;  that  if  there 
is  a  contradiction  in  a  description,  that  part  of  it  is  to  be 
taken  which  gives  most  permanence  and  certainty  to  the 
location.  This  simply  decides  that  where  land  is  described 
by  monuments,  courses  and  distances,  these  shall  control, 
instead  of  the  number  of  the  lot,  and  that  a  false  number 
may  be  rejected  as  surplusage.  But  suppose  we  undertook 
to  reject  the  words,  "right-hand  fork  of  Oro  Fino  gulch "  in 
the  description  under  consideration  ;  it  cannot  be  done  with- 
out utterly  destroying  the  deed,  unless  we  supply  other 
words,  and  no  words  can  be  added  to  or  taken  from  a 
description  by  virtue  of  extrinsic  evidence.  Strike  out  the 
words  "right-hand  fork,"  and  nothing  is  conveyed,  and  the 
deed  is  a  nullity. 

So  in  the  case  of  Irwin  v.  The  United  States,  16  How. 
529,  the  description  contained  in  the  deed  was  as  follows : 
"  The  right  and  privilege  to  use,  divert  and  carry  away 
from  the  fountain  spring,  etc.,  by  which  the  woolen  factory 
of  grantors  is  now  supplied,  so  much  water  as  will  pass 
through  a  pipe  or  tube  of  equal  diameter  with  one  that 
shall  convey  the  water  from  the  said  spring  upon  the  same 
level  therewith  to  the  factory  of  said  grantors."  The  court 
held  that,  under  and  by  virtue  of  this  description,  the 
grantors  were  entitled  to  one-half  the  waters  mentioned, 
and  this  decision  is  perfectly  consistent  with  the  words 
used  ;  and,  following  the  words  of  the  description,  no  other 
decision  could  have  been  arrived  at. 

The  view  of  the  law,  as  herein  intimated,  is  most  forcibly 
expressed  in  the  case  of  Ty mason  v.  Bates,  14  Wend.  672. 
In  this  case  the  court  says  :  "The  deed  describes  the  bound- 
aries of  the  premises  conveyed  as  beginning  at  the  south- 
east corner  of  lot  number  sixty,  in  the  line  of  Lindsay  and 
Roseboom's  tract.  The  existence  and  location  of  this  line 
is  not  in  this  case  the  subject  of  dispute,  but  the  question 
proposed  to  be  evolved  is,  whether  the  parties  to  the  deed 

VOL.  1  —  88 


TAYLOR  v.  HOLTER.  [Aug.  T., 

meant  to  refer  to  what  is  proved  to  be  the  true  line,  or  to 
another  line  which  they  supposed  to  be  the  real  line  of 
Lindsay  and  Roseboom's  tract,  but  which  in  fact  was  not." 
And  the  court  proceeded  to  solve  the  question  by  saying 
that  what  the  parties  intended  must  be  ascertained  by  what 
is  expressed  in  the  deed.  If,  however,  their  intention  ie 
not  expressed  in  the  deed,  extrinsic  evidence  must  be 
resorted  to,  to  supply  that  which  the  instrument  does  not 
supply. 

But  in  the  case  at  bar,  the  intention  is  fully  and  clearly 
expressed  to  convey  the  waters  of  the  right-hand  fork  of 
Oro  Fino  gulch,  and  as  in  the  case  of  Tymason  v.  Bates, 
there  is  no  ambiguity  in  the  expression  used,  nor  any  thing 
in  the  deed  to  show  that  the  parties  did  not  mean  exactly 
what  they  said. 

The  case  under  consideration  must  be  distinguished  from 
the  numerous  cases  cited  in  the  books  where  these  were 
uncertain,  contradictory  or  ambiguous  descriptions,  wherein 
it  is  decided  that  if  there  are  certain  particulars  once  suffi- 
ciently ascertained  which  designate  the  thing  intended  to 
be  granted,  the  addition  of  a  circumstance,  false  or  mistake, 
will  not  frustrate  the  grant,  but  may  be  rejected  as  surplus- 
age, and  so  if  the  language  used  is  ambiguous  it  may  be 
explained,  but  when  explained  it  must  verify  the  intention 
so  proved  by  extrinsic  evidence.  The  true  rule  is,  to  give 
effect  to  the  intention  of  the  parties  if  the  words  they  em- 
ploy will  admit  of  it.  But  if  the  words  used,  by  their 
clearness  and  certainty,  absolutely  forbid  the  aid  of  extrin- 
sic evidence  in  their  interpretation,  it  would  be  changing  the 
certain  written  contract  of  the  parties  to  let  in  outside  parol 
proof. 

Parties  must  contract  for  themselves,  courts  cannot  make 
contracts  for  them,  and  the  rules  of  interpretation  are  utterly 
unavailing  to  aid  a  contract  or  agreement  that  is  specific  and 
certain  in  its  terms,  and  clearly  speaks  what  the  parties 
intended  it  should.  If  parties  convey  the  right-hand  fork 
of  Oro  Fino  gulch,  courts  nor  witnesses  cannot  say  they 
thereby  intended  the  left-hand  fork.  As  well  might  the_\ 


1872.]  TAYLOR  v.  HOLTEK.  699 

say  they  intended  the  left  fork  of  the  Missouri  river,  or  the 
north  fork  of  the  Yellowstone,  and  all  the  circumstances 
and  surroundings  of  the  parties,  however  plausible  they 
may  appear,  cannot  blot  out  the  language  of  the  deed  and 
supply  other  language  in  its  place.  Such  circumstances 
and  surroundings  may  aid  the  language  but  cannot  destroy 
it.  They  can  apply  the  deed  to  its  proper  subject,  and 
when  thus  applied,  the  language  must  describe  such  subject, 
and  be  entirely  consistent  with  it.  The  language  must  con- 
trol and  not  the  circumstances.  The  written  words  must 
stand  and  no  parol  proof  can  destroy  them. 

The  proposed  testimony  by  virtue  of  the  introduction  of 
which  it  was  offered  to  be  proven  that  where  the  parties 
used  the  term  right-hand  fork  in  the  description  they 
in  fact  intended  the  left-hand  fork,  was  properly  rejected, 
and  the  judgment  of  the  court  below  is  affirmed. 

And  here  this  decision  might  properly  close,  but  many 
questions  of  grave  importance  were  argued  and  determined 
in  settling  the  pleadings  in  the  case,  which  so  vitally  affect 
the  rights  of  the  parties  herein,  that  we  feel  called  upon  to 
review  those  decisions. 

And  first,  the  defendants  made  a  motion  to  strike  out  cer- 
tain portions  of  the  complaint,  by  which  motion  the  ques- 
tion of  the  measure  of  damages  in  a  suit  for  breach  of  war- 
ranty in  a  deed  was  presented. 

At  common  law,  upon  the  ancient  covenant  of  warranty, 
upon  voucher  or  writ  of  warrantia  chartce  the  demandant 
recovered  of  the  vendor  other  lands  of  equal  value  with  the 
lands  from  which  the  vendee  or  feofee  was  evicted,  and  the 
value  was  computed  as  it  existed  when  the  warranty  was 
made,  and  the  warrantor  was  not  held  to  pay  for  the 
increased  value  of  the  lands.  And  when  the  personal  cove- 
nants of  warranty  were  introduced,  this  established  measure 
of  compensation  was  not  varied  or  changed. 

In  this  country  upon  a  covenant  of  seizin  and  the  right  to 
convey,  the  rule  in  all  the  States  seems  to  be  the  value  of 
the  lands  at  the  time  of  the  conveyance,  and  interest  and 
vests.  I  believe  this  rule  usuallv  obtains  in  the  United 


700  TAYLOR  v.  HOLTEE.  [Aug.  T. 

States  wherever  the  question  has  been  adjudicated,  and  I  do 
not  understand  counsel  to  dispute  this  proposition.  But 
upon  the  covenant  of  warranty  and  for  quiet  enjoyment, 
there  is  a  conflict  of  authority,  upon  the  measure  of  and 
amount  of  damages  that  may  be  recovered  for  breach  of  the 
covenant.  In  the  covenant  of  seizin  the  breach  occurs  at 
the  time  of  the  conveyance,  it  is  broken  as  soon  as  it  is  made, 
and  this  is  the  reason  assigned  for  the  rule,  that  the  measure 
of  damages  shall  be  the  value  of  the  land  at  the  time  of  the 
breach. 

In  a  covenant  of  warranty  or  for  quiet  enjoyment,  for 
they  are  the  same  in  their  legal  consequences,  the  covenant 
is  not  broken  until  eviction,  and  the  effort  has  been  made  in 
such  cases  to  measure  the  damages  by  the  value  of  the  lands 
at  the  time  the  covenant  is  broken,  in  analogy  to  the  rule  in 
covenants  of  seizin,  and  hence  the  question  as  to  the  in- 
creased value  of  the  land  by  the  natural  rise  thereof  or  by 
way  of  improvements. 

It  is  difficult  to  discover  any  substantial  reason  why  the 
rule  should  not  be  the  same  in  both  classes  of  covenants. 
These  covenants  in  either  case  express  the  contracts,  or  the 
intention  of  the  parties,  and  where  the  parties  act  in  good 
faith,  it  does  not  look  like  exact  justice  to  say  that  A,  who 
takes  possession  of  lands  under  a  covenant  of  seizin,  and 
makes  valuable  improvements  thereon,  upon  being  dispos- 
sessed by  the  real  owner  shall  receive  as  damages  only  the 
value  of  the  lands,  at  the  time  they  were  conveyed  to  him  and 
interest,  while  B,  who  takes  possession  under  a  covenant  of 
warranty,  shall  receive  the  value  at  the  time  he  is  evicted. 
The  reason  assigned  for  the  difference  is  a  purely  technical 
one,  and  is  arrived  at  by  saying,  that  in  the  case  of  a  cove- 
nant of  seizin  the  contract  is  broken  as  soon  as  it  is  made. 

We  propose  to  examine  the  authorities  upon  the  measure 
of  damages  in  covenants  of  warranty  arid  for  quiet  enjoy- 
ment, and  to  arrive  at  what  departures  in  the  rule,  if  any, 
have  been  made  as  applied  to  covenants  of  seizin. 

The  question  came  up  in  the  State  of  New  York  in  180.", 
in  the  case  of  Slaats  v.  Ten  Eyck,  3  Cai.  111.  TJK>  cove- 


1872.]  TAYLOR  v.  HOLTEK.  701 

nants  in  Ten  Eyck's  deed  were  of  seizin  and  for  quiet  enjoy- 
ment, and  the  question  was  whether  the  plaintiff  was  enti- 
tled to  recover  the  value  at  the  time  of  eviction,  or  at  the 
time  of  the  purchase  and  to  be  ascertained  by  the  con- 
sideration given.  KENT,  C.  J.,  decided  that  the  rule  at 
common  law  was  that  the  demandant  recovered  compensa- 
tion only  for  the  land  at  the  time  the  warranty  was  made, 
and  that  the  law  had  not  been  altered  since  the  introduc- 
tion of  personal  covenants.  LIVINGSTON,  J.,  concurred  in 
this  opinion,  and  without  deciding  what  ought  to  be  the 
rule  where  the  estate  has  been  improved  after  purchase,  he 
held  that  the  plaintiff  ought  to  be  re-imbursed  the  costs  sus- 
tained in  the  action  of  ejectment. 

In  a  subsequent  case  (Pitcher  v.  Livingston,  4  Johns.  1), 
the  covenants  were  of  seizin  and  for  quiet  enjoyment,  and 
the  question  was  presented  whether  the  plaintiff  could 
recover  damages  for  improvements  made  by  him  and  the 
increased  value  of  the  land.  Upon  the  question  as  to  the 
increased  value  of  the  land,  all  the  court  concurred  in  the 
opinion  in  the  case  of  Ten  Eyctf  s  Executors,  and  the 
majority  of  the  court  decided  that  there  could  be  no  recov- 
ery for  the  improvements.  SPENCER,  J.,  dissenting  there- 
from and  delivering  a  dissenting  opinion.  These  decisions 
have  been  followed  in  the  State  of  New  York,  and  in  that 
State  the  law  may  be  considered  settled,  and  the  same  rule 
prevails  in  the  States  of  Pennsylvania  (Brown  v.  Dickenson, 
12  Penn.  St.  280  ;  4  Dall.  444  ;  8  Serg.  &  Rawle,  166) ;  North 
Carolina  (Phillips  v.  Smith,  1  N.  G.  L.  R.  475) ;  Georgia 
(Davis  v.  Smith,  5  Ga.  285) ;  Kentucky  (2  Bibb,  279) ;  Arkan- 
sas (1  Pike,  323) ;  Iowa  (1  Greene.  28) ;  Ohio  (14  Ohio,  118); 
Virginia  (2  Leigh,  463) ;  Tennessee  (4  Humph.  101) ;  New 
Jersey  (2  Harr.  304) ;  and  South  Carolina  (2  Nott  &  McCord, 
189). 

The  same  rule  prevails  in  the  supreme  court  of  the  United 
States.  Hopkins  v.  Lee,  6  Wheat.  118. 

Opposed  to  the  rule  adopted  in  these  States,  and  adopt- 
ing the  rule  that  the  measure  of  damages  in  the  case  pro- 
posed is  the  value  of  the  lands  with  the  improvements  at 


702  TAYLOR  -o.  HOLTER.  [Aug.  T., 

the  time  of  the  eviction,  are  the  States  of  Massachusetts 
(Oore  v.  Brazier,  3  Mass.  523);  Connecticut  (Kirby's  R.  3  ; 
14  Conn.  204) ;  Vermont  (12  Vt.  387) ;  and  Maine  (52T). 

PARSONS,  Ch.  J.  (in  Gore  v.  Brazier},  said:  "When 
lands  were  aliened  for  money,  when  improvements  in  agri- 
culture became  an  important  object  of  public  policy,  and 
when  the  alienor  might  have  no  other  lands  to  render  a 
recompense  in  value,  it  became  expedient  that  another  rem- 
edy for  the  purchaser  on  eviction  should  be  allowed.  And 
it  is  certain  that,  before  the  emigration  of  our  ancestors,  the 
tenant,  on  being  lawfully  ousted  by  a  title  paramount,  might 
maintain  a  personal  action  of  covenant  broken  on  the  real 
covenant  of  warranty." 

Upon  this  conflict  of  authority  in  the  different  States  we  are 
called  upon  to  determine  where  the  true  rule  is  to  be  found, 
and  it  is  our  opinion  that  the  weight  of  authority  prepon- 
derates in  favor  of  the  rule  that  the  measure  of  damages, 
where  no  other  consideration  intervenes,  is  the  value  of  the 
lands  at  the  time  the  covenant  is  made,  and  interest  and  the 
necessary  costs  incurred  in  defending  the  title. 

The  rule  we  have  indicated  must  prevail  where  there  is 
nothing  in  the  deed  to  show  a  different  intention.  The  con- 
tract or  covenant  of  warranty  must  be  construed  like  any 
other  contract  by  arriving  at  the  intention  of  the  parties,  and 
where  there  is  any  thing  peculiar  in  the  deed  to  indicate 
what  the  parties  intended  by  their  contract,  that  declared 
intention  ought  to  prevail  over  any  arbitrary  rule  of  law. 
If  the  vendor,  at  the  time  of  the  alienation,  knows  the  par- 
ticular purpose  to  which  the  vendee  intends  to  put  the  prop- 
erty he  ought  to  be  said  to  make  the  conveyance  with  refer- 
ence to  that  purpose. 

There  are  intimations  running  through  all  the  authorities 
that  the  contract  of  warranty  must  be  construed  like  any 
other  contract  by  arriving  at  the  intention  of  the  parties,  as 
if  A  buys  of  B  a  city  lot  for  the  purpose  of  erecting  a  dwell- 
ing-house thereon  of  great  value,  and  this  purpose  is  known 
to  B  at  the  time  he  makes  the  covenant  of  warranty,  he 
ought  to  be  held  to  contract  with  reference  to  this  object, 


1872.]  TAYLOR  o.  HOLTEB.  7Ub 

and  it  would  seem  that  a  covenant  of  warranty  of  title  and 
quiet  enjoyment  under  such  circumstances  must  be  different 
in  its  obligation  than  such  a  covenant  as  applied  to  a  piece 
9r  parcel  of  wild  land,  unoccupied  and  of  little  value. 

Mr.  Sedgwick  (Measure  of  Damages,  164)  says :  "  There 
seems  great  doubt  whether  sufficient  attention  lias  been  paid 
to  the  words  of  the  covenant.  What  is  the  meaning  of  the 
phrase  of  'quiet  enjoyment'  in  regard  to  a  city  lot  for 
instance,  which  is  of  no  use  but  for  buildings,  OIL  which 
erections  must  be  contemplated  at  the  time  of  the  purchase 
by  both  parties,  and  of  which  without  such  erections  no 
enjoyment  can  be  had.  May  not  a  distinction  be  well  taken 
between  this  covenant  applied  to  such  property  and  to  farm- 
ing lands  i!" 

It  will  be  observed  that  this  distinction  is  made  by  Mr. 
Sedgwick,  where,  from  the  nature  of  the  conveyance  and 
without  any  words  in  the  deed,  the  parties  must  contem- 
plate valuable  improvements. 

The  plaintiffs  invoke  the  distinction  made  by  Mr.  Sedg- 
wick, and  ask  that  it  be  applied  to  the  deed  in  question. 
They  contend  that  from  the  language  of  the  deed  itself, 
aside  from  the  nature  of  the  property  conveyed,  the  vendor 
knew  the  purpose  of  the  vendee  in  securing  the  conveyance; 
and  knew  that  he  intended  to  attach  valuable  improvements 
thereto,  which  would  be  of  no  value  if  the  title  to  the  prop- 
erty conveyed  failed. 

From  the  description  in  the  deed  it  is  true  that  the  vendor 
knew  that  the  vendee  contemplated  constructing  a  ditch 
whereby  the  purchase  would  be  made  valuable,  and  the 
vendor  knew  that  it  was  necessary  to  construct  a  ditch  from 
the  right-hand  fork  to  the  left-hand  fork  before  this  water 
could  be  conveyed  to  Tucker  gulch,  and  he  knew  that  water 
for  Tucker  gulch  was  the  object,  and  he  knew  that  the 
vendee  contemplated  making  a  ditch  from  the  right-hand 
fork  to  the  left-hand  fork,  and  the  vendors  lix  the  point  of 
departure  of  such  ditch.  And,  if  we  considered  this  an 
open  question,  we  should  say  that  the  party  having  tin* 
knowledge  must  have  contracted  and  entered  into  his  co\v- 


704  TAYLOR  v.  HOLTER.  [Aug.  T., 

nant  of  warranty  with  reference  to  this  information,  and 
that  it  formed  one  of  the  ingredients  of  the  covenant,  and 
was  one  of  the  necessary  elements  of  the  contract  of  war- 
ranty. Parties  do  covenant  with  reference  to  the  subject- 
matter  of  the  conveyance  and  with  reference  to  the  object 
of  the  conveyance,  especially  when  that  object  is  expressed 
in  the  deed.  And  if  we  did  not  feel  controlled  by  the 
authorities,  we  should  say  that  the  vendor,  knowing  the 
purpose  of  the  vendee,  and  that  purpose  being  expressed 
in  the  deed,  he  entered  into  the  covenant  of  warranty  with 
reference  to  that  purpose,  and  that  this  covenant  would  hold 
him  to  respond  for  such  improvements.  As  if  A  should 
say  to  B,  "  if  you  will  build  a  flouring  mill  upon  this  stream 
worth  $10,000  I  will  warrant  you  the  title  to  the  water  and  the 
water  right,"  and  the  mill  should  be  built  upon  the  strength 
of  such  warranty,  and  the  title  should  fail,  A  should  be 
held  for  the  value  of  the  improvements. 

But  we  feel  controlled  and  guided  by  a  long  course  of 
decisions  wherein  the  value  of  the  land  at  the  time  of  the 
conveyance,  with  interest  and  costs,  is  fixed  as  the  measure 
of  damages,  and  the  distinction  suggested  by  Mr.  Sedgwick, 
if  made  at  all,  has  been  disregarded.  Some  definite,  fixed 
and  unalterable  rule  ought  to  prevail  as  to  the  measure  of 
damages  upon  breach  of  warranty  of  title,  and  the  one  fix- 
ing the  value  of  the  lands  at  the  time  of  the  conveyance, 
with  interest  and  costs,  has  been  a  long  time  adhered  to, 
and  it  is  now  too  late  to  make  any  departure  therefrom. 

The  consideration  in  the  deed  is  $2,000  in  clean  gold  dust, 
and  the  averment  in  the  complaint  is  that  $2, 500  in  currency 
was  paid  as  the  consideration,  and  the  plaintiffs  ask  dam- 
ages for  $2,500  as  to  this  item. 

Upon  this  proposition  we  say  that  where  a  contract  is 
made  payable  in  so  many  dollars'  worth  of  specific  articles 
of  personal  property,  after  demand  and  refusal  to  deliver 
the  property,  it  becomes  a  contract  to  pay  so  much  in  money, 
and  we  hold  that  only  $2,000  in  currency  could  have  been 
collected  for  the  consideration  in  the  deeds,  and  as  a  conse- 


1872.]  TAYLOK  v.  HOLTER.  705 

quence  only  $2,000  damages  could  be  collected  in  this  action, 
together  with  interest  and  costs. 

And  as  to  costs,  we  hold  this  :  that  the  vendor  not  only 
warranted  the  title,  but  he  promised  to  defend  it.  For  what 
shall  he  respond  under  this  promise  to  defend  the  title  he 
grants  ?  That  the  taxable  costs  in  the  suit  to  defend  the 
title  can  be  recovered  under  and  by  virtue  of  this  cove- 
nant, does  not  seem  to  admit  of  much  question ;  and  that  a 
reasonable  counsel  fee,  as  well  as  the  taxable  fee  of  counsel, 
can  be  recovered,  was  held  in  the  case  of  TenEyck 's  Execu- 
tors, and  this  seems  to  be  the  rule  in  Massachusetts,  Maine, 
New  Hampshire  and  Vermont.  And  the  same  reason  that 
would  authorize  the  recovery  of  the  clerk's,  sheriff's  and 
other  costs  would  also  authorize  and  permit  the  recovery  of 
reasonable  counsel  fees  necessarily  incurred  in  defending 
the  title.  The  character  of  these  expenses  is  the  same.  One 
is  just  as  requisite  as  the  other,  and  both  are  requisite  to  a 
defense,  and  we  hold  that  both  are  recoverable  for  the  same 
reason. 

2.  The  next  question  relates  to  the  sufficiency  of  the  com- 
plaint. The  defendants  filed  a  demurrer  thereto  upon  the 
ground  that  the  deed  in  question  was  but  a  release  ;  that  the 
guaranty  attached  only  to  the  grantors'  interest  in  the  prop- 
erty conveyed,  and  the  grantors  having  no  interest  in  the 
property  at  the  time  of  the  conveyance,  the  warranty  is  there- 
fore void. 

An  inspection  of  the  deed  will  show  the  following  :  "That 
the  parties  of  the  first  part  for  and  in  consideration  of 
the  sum  of  §2,000  clean  gulch  gold  dust  to  them  in  hand 
paid  by  the  parties  of  the  second  part,  the  receipt  whereof 
is  hereby  acknowledged,  hath  remised,  released,  and 
forever  quitclaimed,  unto  the  said  parties  of  the  second 
part,  and  to  their  heirs  and  assigns  all  that  certain  water- 
right  lying,"  etc.  Then  follows  this  clause  of  warranty: 
"and  we  hereby  covenant  and  agree  to  warrant  and  defend 
the  title  to  the  same  against  all  claims  of  all  persons  whom- 
soever, whether  in  law  or  equity." 

By  the  words  used  in  this  deed,  did  the  grantors  convey 
VOL.  I.  — 89. 


706  TAYLOR  a.  HOLTEK.  [Aug.  T., 

the  water-right  as  upon  bargain  and  sale,  or  did  they  sim- 
ply convey  their  interest  therein,  whatever  that  interest 
might  have  been  ?  it  is  suggested  that  in  the  conveyance  of 
a  mere  possessory  title  where  the  party  has  not  the  title  in 
fee,  as  in  this  case,  that  the  words  remise,  release  and  quit- 
claim are  the  proper  words  to  use  in  making  such  convey- 
ance, but  we  wish  to  strip  this  question  of  every  peculiar  or 
local  consideration,  and  to  determine  it  upon  the  bare  words 
used  in  the  conveyance. 

This  deed  must  be  taken  as  a  whole  and  construed  to- 
gether, and  every  part  and  portion  thereof  must  be  made  to 
harmonize  with  the  whole,  and  effect  must  be  given  to  every 
part,  if  possible,  without  violating  any  known  rules  of  con- 
struction and  interpretation.  We  must  gather  the  intention 
of  the  parties  from  the  whole  deed.  We  cannot  single  out 
the  words  remise,  release  and  quitclaim,  and  say  therefrom 
that  the  grantors  simply  intended  to  convey  their  interest  in 
the  property,  but  these  words  must  be  construed  in  the  light 
of  the  fact  that  an  ample  and  full  consideration  was  paid 
for  the  property,  and  that  the  title  thereto  was  warranted. 
The  warranty  and  the  consideration  paid  are  entirely 
inconsistent  with  the  theory  that  the  grantors  intended 
simply  to  release  the  property,  but  on  the  contrary  they 
indicate  conclusively  that  the  grantors  intended  to  convey 
the  property  itself  and  the  title  thereto.  And  this  view  of 
the  case  is  supported  by  a  pure  principle  of  equity,  which 
would  forever  prohibit  a  party  from  receiving  a  full  consid- 
eration for  property,  covenanting  to  warrant  the  title  and 
still  retaining  the  consideration,  to  declare  that  because  he 
had  conveyed  nothing  his  covenant  of  warranty  was  worth- 
less. 

We  have  no  hesitation  in  saying  from  this  deed,  that  the 
grantors  intended  by  it  to  convey  the  whole  property  therein 
described,  and  that  when  they  received  $2,000  therefor  they 
supposed  they  were  receiving  the  full  price  and  value  of 
such  property,  and  this  intention  of  the  parties  must  be 
carried  into  effect  if  the  words  they  use  do  not  absolute!}' 
prohibit. 


1872.]  TAYLOK  -c.  HOLTEU.  707 

It  will  be  noticed  that  the  grantors  do  not  remise,  release 
and  quitclaim  all  their  right,  title  and  interest  in  and  to  the 
property,  but  they  remise,  release  and  quitclaim  tlie  thing 
itself.  There  is  a  marked  distinction  between  remising  and 
releasing  one's  interest  in  property,  and  in  remising  and 
releasing  the  property  itself ;  in  the  latter  case  the  words, 
when  supported  by  a  full  consideration,  would  be  treated  as 
words  of  bargain  and  sale,  but  in  the  former  case  the  words 
would  only  convey  the  parties'  interest,  no  matter  what  the 
consideration  was.  As  if  A  should  remise,  release  and  quit- 
claim black  acre  to  B,  receiving  from  B  the  full  value  of  the 
property,  such  conveyance  would  carry  the  absolute  title, 
while  if  A  should  only  remise,  release  and  quitclaim  his 
interest  in  black  acre,  B  would  only  acquire  such  interest, 
although  a  full  consideration  was  paid.  We  believe  this 
distinction  is  supported  by  the  authorities. 

In  LyncJi  v.  Livingston,  2  Seld.  434,  the  words  in  the 
conveyance  were  "have  remised,  released,  and  forever  quit- 
claimed, and  by  these  presents  do  remise,  release  and  quit- 
claim unto  the  said  party  of  the  second  part,"  and  the  court 
of  appeals  say,  "This  was  a  good  and  valid  bargain  and 
sale.  The  pecuniary  consideration  was  adequate  to  sup- 
port it  as  suc7i,  and  the  words  'remise,  release  and  quit- 
claim' were  sufficient  to  raise  a  use  in  favor  of  Robert  J. 
Livingston,  the  bargainee,  which  use  the  statute  of  uses 
transformed  into  possession." 

In  a  case  reported  in  the  11  111.  484,  the  court  say,  in 
speaking  of  a  quitclaim  deed :  "  Such  a  deed  is  just  as  effect- 
ual for  the  purpose  of  transferring  real  estate  as  a  deed  of 
bargain  and  sale,  and  had  there  been  no  other  words  in  the 
deed  under  consideration,  showing  an  intention  on  the  part 
of  the  grantor  not  to  convey  the  land  in  question,  there  can 
b«  no  doubt  that  the  plaintiff  would  have  been  entitled  tc 
recover/ ' 

And  so  in  Williamsoji  v.  Test,  24  Iowa,  138,  the  court 
hold:  "And  notwithstanding  the  words  'sell,  convey  and 
quitclaim,'  in  the  prior  part  of  the  instrument,  the  subse- 
quent language  warranting  and  defending  the  premises 


708  TAYLOR  v.  HOLTEK  [Aug.  T., 

against  the  lawful  claim  of  all  persons  whomsoever,  except 
the  United  States,  would  be  without  meaning,  unless  con- 
strued to  hold  the  grantor,  as  claimed  by  plaintiff."  See, 
also,  McNea/i  v.  McComber,  18  Iowa,  12  ;  Morrison  v.  Wil- 
son, 30  Cal.  346  ;  5  Conn.  220. 

So  we  say  of  the  deed  we  are  considering  ;  the  words  war- 
ranting and  defending  the  title  against  the  claims  of  all  per- 
sons whomsoever  are  without  meaning,  and  were  simply 
intended  as  a  fraud  and  a  deception,  unless  the  words 
remise,  release  and  quitclaim  are  construed  as  words  of 
bargain  and  sale,  and  in  giving  these  words  such  a  construc- 
tion we  only  carry  into  effect  the  clear  and  express  intention 
of  the  parties. 

The  defendants  contend  that  the  words  in  the  deed 
amount  only  to  a  quitclaim  of  the  grantors'  interest  in  the 
property,  and,  assuming  this  to  be  true,  they  cite  the  follow- 
ing authorities  to  support  the  proposition  that  when  the 
deed  purports  to  convey  only  the  grantors'  interest  in 
the  property,  the  warranty  only  attaches  to  the  interest  of 
the  grantors,  viz. :  Sweet  v.  Brown,  12  Mete.  175  ;  Kimball  v. 
Semple,  25  Cal.  452 ;  Gee  v.  Moore,  14  id.  472  ;  Blanchard 
v.  Brooks,  12  Pick.  47  ;  Powers  v.  Ware,  2  id.  458. 

If  the  assumption  of  the  defendants  were  correct,  then 
their  authorities  would  be  in  point ;  but  it  is  assuming  the 
whole  question  to  say  that  the  words  in  the  deed  amount 
simply  to  a  conveyance  of  the  grantors'  interest  in  the  prop- 
erty, and  we  are  satisfied  that  these  words,  in  the  light  of 
the  authorities  cited,  when  supported  by  a  full  consideration 
paid  and  a  warranty,  are  words  of  bargain  and  sale,  and 
that  the  warranty  attaches  not  to  the  grantors'  interest,  but 
to  the  property  itself. 

3.  The  next  question  arose  upon  the  third  defense  set  up 
in  the  answer.  This  answer  substantially  set  forth  that  one 
Laird  was  the  owner  of  the  property  in  question,  or  of  an 
interest  therein ;  that  he  conveyed  the  same  to  defend- 
ants to  indemnify  them  against  a  liability  for  him  ;  that  this 
liability  had  terminated,  and  ceased  to  exist ;  that  plaintiffs 
applied  to  Laird  to  purchase  this  property,  the  title  to 


1872.]  TAYLOR  v.  HOLTEK.  709 

which  was  in  defendants,  and  did  purchase  the  same,  pay- 
ing the  entire  consideration  therefor  to  Laird ;  that  Laird 
then  applied  to  the  defendants  to  make  to  plaintiffs  a  deed 
of  the  property,  which  they  did,  and  which  is  the  deed  in 
the  complaint  set  forth,  and  that  all  these  facts,  at  the  time 
of  making  such  deed  by  defendants,  were  known  to 
plaintiffs. 

It  will  be  observed  by  the  averments  of  the  answer  that 
the  defendants  were  in  fact  trustees  of  Laird,  holding  the 
title  for  him,  and  it  will  be  seen  that  one  important  element, 
whereby  the  deed  in  question  was  declared  to  be  good  and 
valid  as  a  warranty  deed,  is  wanting  in  the  answer,  viz.,  a 
consideration.  The  consideration  passed  to  Laird ;  these 
defendants  received  nothing ;  they  acted  as  machines  in 
making  the  conveyance,  and  if  the  deed  cannot  be  supported 
as  a  deed  of  bargain  and  sale  without  an  adequate  considera- 
tion received  ~by  these  defendants,  then  it  must  fail ;  for  as 
to  these  defendants,  no  consideration  passed  between  the 
parties. 

We  apprehend  that  it  was  entirely  immaterial  to  whom 
the  consideration  was  paid.  The  question  is,  not  whether 
Laird  or  these  defendants  received  the  consideration,  but 
was  the  value  of  the  property  paid  for  by  the  plaintiffs  I 
The  fact  that  defendants  were  trustees  for  Laird  cannot 
affect  their  liability.  They  acknowledge  that  they  received 
$2,000  for  the  property  and  covenant  to  warrant  the  title, 
and  if  they  immediately  paid  the  money  to  Laird,  to  whom 
it  belonged,  that  fact  would  not  enable  them  to  defend  against 
their  covenant. 

Trustees  are  never  under  any  obligation  to  make  a  per- 
sonal covenant  of  warranty,  but  if  they  volunteer  to  do  so 
their  liability  is  precisely  the  same  as  if  they  were  acting 
for  themselves,  and  not  as  trustees. 

Upon  this  subject  Mr.  Hill  (on  Trustees,  page  790)  says : 
"It  has  been  al  ready  observed  that  trustees  cannot  be  required 
to  enter  into  any  personal  covenants  for  title  in  a  conveyance 
of  trust  estate,  beyond  the  usual  covenant  that  they  have 
not  incumbered.  But  if  tli<\y  should  enter  into  any  such 


710  TAYLOR  v.  HOLTEB.  [Aug.  T. 

personal  covenants,  they  will  be  liable  in  an  action  at  law 
by  the  covenantees  in  case  of  breach." 

In  Oreason  v.  Keleltas,  17  N.  Y.  491,  the  court  of  appeals 
holds  as  follows  :  "  Although  parties  who  act  in  respect  to 
the  property  in  their  hands  in  the  capacity  of  trustees  only 
are  not  ordinarily  under  any  obligation,  in  executing  the 
duties  of  their  trust,  to  enter  into  any  personal  covenants  in 
relation  to  the  trust  property,  yet  when  they  voluntarily  do 
so  they  are  not  only  themselves  bound  to  perform  such  cov- 
enants, but  those  who  succeed  to  their  rights  as  trustees  are 
also  bound,  so  long  as  they  retain  the  control  of  the  prop- 
erty to  which  they  relate.  See,  also,  Sumner  v.  Williams, 
8  Mass.  162. 

The  facts  set  out  in  the  third  defense  of  the  answer  are  not 
sufficient  to  constitute  a  legal  defense  to  said  action. 

4.  The  final  question  relates  to  the  acknowledgment  of  the 
deed.  The  acknowledgment  is  not  in  the  form  prescribed 
by  the  statute,  and  the  defendants  contend  that  this  irregu- 
larity vitiates  the  deed  as  between  the  parties  to  the  instru- 
ment. 

Our  statute  provides  (section  3,  p  396):  "  Every  convey- 
ance in  writing,  whereby  any  real  estate  is  conveyed  or  may 
be  affected,  shall  be  acknowledged  or  proved  in  the  manner 
hereinafter  provided."  Section  6  provides :  "No  acknowl- 
edgment of  any  conveyance  whereby  any  real  estate  is  con- 
veyed or  may  be  affected  shall  be  taken  unless  the  person 
offering  to  make  such  acknowledgment  shall  be  personally 
known  to  the  officer  taking  the  same  to  be  the  person  whose 
name  is  subscribed  to  such  conveyance  as  a  party  thereto, 
or  shall  be  proved  to  be  such  by  oath  or  affirmation  of  a 
creditable  witness. ' ' 

It  is  admitted  that  the  acknowledgment  to  the  deed  in 
question  does  not  answer  the  requirements  of  the  statute. 
Does  such  failure  in  the  acknowledgment  vitiate  the  deed 
as  between  the  parties  thereto  ? 

The  object  of  an  acknowledgment,  and  the  record  of  a 
deed  affecting  real  estate  relates  to  the  rights  of  third  per- 
sons 


1872. J  TAYLOK  v.  HOLTEB.  711 

It  is  submitted  that  a  deed  as  between  the  parties  to  the 
instrument  is  good  and  valid  when  signed,  sealed  and 
delivered,  and  the  purpose  of  acknowledgment  and  record 
is  for  the  protection  of  third  persons.  As  between  the 
parties  a  deed  can  be  enforced  without  acknowledgment 
and  without  record.  The  acknowledgment  is  no  part  of 
the  deed. 

In  the  case  of  Wood  v.  Owing s,  I  Cranch,  239,  the 
supreme  court  of  the  United  States  holds,  in  considering 
a  case  under  the  Maryland  statutes,  which  upon  the  subject 
of  acknowledgment  of  deeds  are  similar  to  ours: 

•'It  is  a  well-established  doctrine  of  the  common  law  that 
a  deed  becomes  complete  when  sealed  and  delivered.  It 
then  becomes  the  act  of  the  person  who  has  executed  it,  and 
whatever  its  operation  may  be,  it  is  his  deed.  The  very  act 
of  living,  which  puts  the  paper  into  the  possession  of  the 
party  for  whose  benefit  it  is  made,  seems  to  require  the  con- 
struction that  it  has  become  his  deed.  Upon  the  most 
mature  consideration  of  the  subject,  the  opinion  of  the 
court  is,  that  the  words  used  in  the  act  of  Maryland,  which 
have  been  recited,  consider  the  instrument  as  a  deed 
although  inoperative  till  acknowledged  and  enrolled." 

Following  this  decision  we  hold  that  the  defect  in  this 
acknowledgment  does  not  destroy  the  deed  as  between  the 
parties  thereto,  and  that  as  between  such  parties  the  deed 
would  be  good  even  without  acknowledgment  or  record. 

The  questions  we  have  considered  in  this  opinion  may  be 
reduced  to  the  following  as  a  statement  of  the  conclusions 
arrived  at : 

1.  The  intent  of  the  parties  must  be  gathered  from  what 
is  written  rather  than  from  parol  evidence,  but  the  language 
of  the  instrument  may  be  construed  by  the  light  of  sur- 
rounding circumstances,  and  so  far  as  possible  the  court 
may  put  itself  in  the  place  of  the  parties,  and  may  inter- 
pret the  language  from  this  stand-point,  but  nothing 
can  be  added  to  or  taken  from  the  written  words.  There- 
fore no  interpretation  could  be  given  to  a  deed  whereby  the 
words  "Right-hand  fork  of  Oro  Fino  gulch  "in  the  descrip- 


712  TAYLOR  «.  HOLTER.        [Aug.  T.,  1872.] 

tion  could  be  made  to  read  "Left-hand  fork  of  Oro  Fino 
gulch."  Extrinsic  parol  evidence  can  only  explain  ambigu- 
ous and  uncertain  words  and  phrases.  Words  direct,  sim- 
ple and  certain  cannot  be  explained  by  parol. 

2.  The  measure  of  damages  for  breach  of  warranty  in  a 
deed  is  the  value  of  the  property  at  the  time  of  the  con- 
veyance, together  with  interest  thereon,  and  the  necessary 
costs  and  expenses  incurred  in  defending  the  title,  and  such 
costs  and  expenses  include  a  reasonable  counsel  fee. 

3.  The  words  remise,  release  and  quitclaim,  when  sup- 
ported by  an  adequate  consideration  and  warranty  of  title, 
thereby  showing  the  intention  of  the  parties  to  have  been  to 
convey  the  property  itself,  and  not  the  grantors'  interest 
therein,  are  words  of  bargain  and  sale,  and  operate  to  con- 
vey the  property  described. 

4.  The  grantors  being  trustees  and  holding  the  title  for 
the  benefit  of  third  persons,  and  the  consideration  having 
passed  to  such  third  persons,  does  not  affect  their  liability. 
They  are  liable  on  their  personal  covenants,  notwithstanding 
their  character  as  trustees. 

5.  The  acknowledgment  to  a  deed  is  no  part  of  the  deed, 
and  as  between  the  parties  to  the  instrument  a  deed  is  good 
without  acknowledgment,  the  acknowledgment  and  record 
being  required  for  the  protection  and  benefit  of  third  per- 
sons. 

The  judgment  of  the  court  below  is  affirmed. 

Judgment  affirmed. 


CASES 

ARGUED   AND    DETERMINED 

IN  THB 

SUPREME  COURT 


AT  THB 


JANUARY  TERM,  1873,  HELD   IN  VIRGINIA  OITT. 


IPresent : 

HON.  D.  8.  WADE,  CHIEF  JUSTICE. 
HON.  HIRAM  KNOWLES,  ASSOCIATE  JUSTIOB. 


HARVEY,  respondent,  v.  WIIITLATOH  et  al.,  appellants. 

PHACTICK  —  verdfat — judgment  mine  pro  tune.  After  a  verdict  has  been  ren- 
dered  and  the  clerk  has  failed  to  outer  judgment  thereon  at  the  proper 
term,  the  court  can  enter  a  judgment  mine  pro  tune  at  any  succeeding  term, 
if  the  righta  of  third  parties  are  not  affected. 

Appeal  from  the  Third  District,  Lewis  and  Clarke  County. 

IN  February,  1872,  the  court,   WADE,  J.,  ordered  that 
judgment  should  be  entered  nunc  pro  tune  on  a  verdict 
rendered  in  July,  1871.     The  facts  are  stated  in  the  opinion. 
Voi*  I.  — 90. 


714  CORNELL  v.  LATTA.  [Jan.  TM 

M.  BULLAED,  for  appellants. 

SHOBEB  &  LOWKY,  for  respondent. 
No  briefs  on  file. 

WADE,  C.  J.  This  case  was  tried  to  a  jury,  at  the  July 
term,  1871,  of  the  district  court  for  Lewis  and  Clarke  county, 
and  at  that  term  an  order  was  made  that  judgment  be 
entered  upon  the  verdict.  The  judgment  was  not  entered 
in  pursuance  of  this  order  At  the  February  term,  1872,  of 
said  court,  the  plaintiff  made  a  motion  asking  that  judgment 
be  entered  nunc  pro  tune,  and  judgment  was  entered 
accordingly.  From  the  order  causing  judgment  to  be 
entered  nunepro  tune,  the  defendants  appeal  to  this  court. 
The  failure  to  enter  judgment  upon  the  verdict,  in  pursu- 
ance of  the  order  therefor,  was  an  omission  or  mistake  of 
the  clerk  of  court. 

There  was  no  error  in  the  entry  of  the  judgment  nunepro 
tune.  The  court  is  master  of  its  own  records  for  the  pur- 
pose of  correcting  clerical  errors,  and  whenever  a  clerk  of 
court  fails  to  enter  judgment  as  ordered  by  the  court  to  do, 
the  court  can  cause  such  judgment  to  be  entered  at  any 
succeeding  term,  provided  such  entry  does  not  interfere 
with  or  affect  the  rights  of  third  persons,  and  no  such  rights 
are  presented  or  appear  in  this  case. 

Judgment  affirmed. 


COBITELL,  respondent,  v.  LATTA,  appellant. 

PRACTICE — oral  notice  of  appeal.  Section  370  of  the  Civil  Practice  Act  require* 
a  written  notice  of  appeal,  and  an  oral  notice  given  in  open  court  is  insuffi- 
cient. 

Appeal  from  the  First  District,  Gallatin  County. 

IN  November,  1872,  Latta  appealed  from  the  decision  of 
the  court,  SERVT*.  J.     The  facts  are  stated  in  the  opinion. 


1873.J  CORNELL  •».  LATTA.  716 

PAGE  &  GOLEM  AN,  for  respondent. 

WADE,  C.  J.  This  was  a  case  of  forcible  entry  and 
detainer,  tried  before  a  justice  of  the  peace,  and  appealed 
to  the  district  court,  and  from  thence  appealed  to  this  court. 
The  respondent  appears  here  and  files  a  motion  to  dismiss 
the  appeal,  for  the  reason  that  no  motion  of  appeal  was 
liled  with  the  clerk  of  the  district  court,  and  no  copy  of 
such  notice  was  served  upon  the  adverse  party  or  his 
•attorney.  Section  370  of  the  Code  provides  that  the  appeal 
shall  be  made  by  filing  with  the  clerk  of  the  court  in  which 
the  judgment  or  order  appealed  from  is  entered,  a  notice 
stating  the  appeal  from  the  same  or  some  specific  part 
thereof,  and  serving  a  copy  of  the  notice  on  the  adverse 
party  or  his  attorney. 

The  notice  of  appeal  herein,  as  disclosed  by  the  record, 
was  an  oral  notice,  given  in  open  court.  This  notice  does 
not.  in  any  respect,  answer  the  requirements  of  section  370, 
before  referred  to,  and  for  this  reason  the  case  is  dismissed 

from  this  court. 

Appeal  dismissed. 


INDEX, 


ABANDONMENT. 

Intention.  The  suspension  of  work  upon  a  ditch,  from  July,  1865,  to  Angiur, 
1866,  was  not  an  abandonment,  if  there  was  uo  intention  to  abandon  the 
same .  Atchixoii  v.  Peterson,  561. 

ACCOUNT  STATED. 
See  PLEADING,  14 

ACTION. 

1.  Undertaking  on  appeal  —  liability  of  sureties  —  defense  to  action.  If  the  sureties 

iu  a  written  undertaking  on  appeal  agree  to  pay  a  judgment  that  has 
been  rendered  in  the  district  court,  if  the  same  should  be  affirmed  by  the 
supreme  court  of  the  Territory,  an  action  can  be  brought  against  one  of  the 
sureties  when  the  judgment  has  been  so  affirmed;  and  in  this  action,  the 
facts  that  an  appeal  has  been  properly  taken  from  the  supreme  court  of  the 
Territory  to  the  supreme  court  of  the  United  States,  and  that  proceedings 
have  been  legally  stayed  on  the  judgment,  do  not  constitute  a  defense. 
Bullard  v.  Qilette,  509. 

2.  Undertaking  on  appeal  —  void  judgment  for  deficiency.      An  action  for  the 

non-payment  of  a  judgment  cannot  be  brought  upon  an  undertaking  on 
appeal,  providing  for  the  payment  of  any  deficiency  arising  upon  the  sale 
of  mortgaged  premises,  if  no  judgment  for  such  deficiency  was  rendered 
in  the  original  suit.  Creighton  v.  Hersh  field,  639. 

See  ADMINISTRATOH  ;  ILLEGAL  FEES  ;   REPLEVIN  ;   SHERIFFS'  RETURN  ; 
TERRITORIAL  WARRANTS,  5. 

ADMINISTRATOR. 

An  administrator  cannot  maintain  an  action  of  ejectment  for  the  possession  of 
realty,  or  trespass  for  damages  to  the  same.  Carhart  v.  Montana  -.Mineral 
etc.  Co.,  245. 

ADULTERY. 

See  CRIMINAL  LAW,  4 

AFFIDAVIT. 
See  ATTACHMENT. 

AGENCY. 
See  PRINCIPAL  AND  AGKNT. 

AGENT. 

Declaration  of —authority.  The  declaration  of  an  agent  of  a  corporation, 
respecting  his  authority,  is  hearsav  testimony.  Brown  V.  Q.  A  S.  G.  AS.  if. 
Co.,  57. 

See  PRINCIPAL  AMI  AGENT- 


718  INDEX. 

AGREEMENT. 

1.  Situation  of  parties.    The  situation  of  the  parties  to  an  agreement  oan  be  con- 

sidered by  the  court  to  ascertain  the  meaning  of  the  instrument.  Creighton 
v.  Vanderlip,  400. 

2.  Waiver  of  condition.    An  agreement  cannot  be  rescinded  by  the  failure  of  a 

party  to  perform  a  condition  which  has  been  waived.   Da/via  v.  Germaine,  210. 

See  CONTRACT  TO  PAY  GOLD  DUST  ;  PRACTICE,  43,  44 ;  STATUTE. 

AGREEMENT  FOR  BUYING  LAND. 

How  rescinded  —  purchase-money.  Neither  the  vendor  nor  vendee  caii  rescind 
a  written  agreement  for  the  purchase  of  land,  if  the  buildings  thereon, 
which  were  not  the  chief  inducement  to  such  purchase,  are  destroyed  by 
fire,  without  any  fault  of  the  vendor.  The  vendee  cannot  recover  the  por- 
tion of  the  purchase-money  which  he  paid  the  vendor  on  the  agreement 
before  the  fire  occurred.  Bouts  v.  Knhworth,  133. 

AMENDMENT. 
See  PRACTICE,  21,  88-90 

APPEAL  BOND. 
To  the  Supreme  Court  of  the  United  States,  279. 

APPEAL. 
See  ACTION;  PRACTICE,  1,  37,  38,  63,  74;  RKOMVM. 

APPEARANCE. 
See  PRACTICE,  14, 15,  26,  36. 

APPROPRIATION  OF  PAYMENT. 
See  MECHANICS'  LIEN,  1. 

APPURTENANOE. 

See  EVIDENCE,  6;  GRANT. 

ASSAULT  AND  BATTERY. 

Liability  of  parties.  In  an  action  to  recover  damages  for  an  assault  and  bmlAarf 
the  defendants  are  jointly  and  severally  liable.  Daily  v.  Redfem,  467. 

See  PLEADING,  17, 18. 

ASSAULT  WITH  DEADLY  WEAPON. 
See  CRIMINAL  LAW,  1. 

ASSIGNMENT. 
See  MECHANICS'  LIEN,  4;  MORTGAGE,  2. 

ATTACHMENT. 

1.  Dissolution  of.    The  defective  statement  of  a  cause  of  action  in  the  plead- 

ings is  not  a  ground  for  dissolving  th«  attachment.  Cope  v.  IT.  M.  M.  A  P. 
Co.,  53. 

2.  Affidavit.    An  affidavit  for  an  attachment,  which  sets  forth  that  the  amount 

is  due  "upon  in  part  of  both  an  express  and  implied  contract,"  without 
specifying  how  much  is  due  upon  each  contract,  is  sufficient ;  but  this  affi- 
davit is  not  a  model  of  pleading.  Ib. 

8.  Attachment  law  remedial.  The  attachment  law  is  a  remedial  statute,  and 
must  he  liberallv  consti-ned.  Ib. 


INDEX.  719 

4.  Undertaking  —  contract  of  sureties.  The  contract  of  the  sureties  in  an 
attachment  undertaking  is  in  the  nature  of  a  guaranty  that  the  principal 
will  pay  the  costs  and  damages  sustained.  Pinney  v.  llershfield,  367. 

6.  Officer  is  trustee  for  creditor.  An  officer  that  has  levied  upon  property 
holds  the  same  and  receives  an  undertaking,  if  it  is  duly  taken  from  his 
possession,  as  a  trustee  for  the  benefit  of  the  attaching  creditor.  Lomme  v. 
Sweeney,  684. 

See  EVIDENCE,  8 ;  PLEADING,  13 ;  REPLEVIN,  G. 

ATTORNEY  IN  FACT. 

Authority  for  appearance.  The  attorney  in  fact  of  a  corporation,  who  is  not  ita 
general  managing  agent,  cannot  appear  in  an  action  against  it  without  spe- 
cial authority.  Lamb  v.  O.  &  S.  G.  &  S.  M.  Co.,  64. 

ATTORNEYS'  FEES. 
See  INJUNCTION,  7 ;  PLEADING,  6. 

AUDITOR. 
See  TERRITORIAL  AUDITOR. 

BANK  CHECK. 

Indorsement  of — bill  of  exchange  —  days  of  grace  —  protest.  An  instrument  in 
these  words, 

"  No.  4,  HELENA,  M.  T.,  May  15, 1871. 
[Stamp.] 

"  Fox  &  LYSTER,  Bankers : 

"  Pay  to  Thomas  Cotsworth,  or  bearer,  twenty  dollars. 

"  CHARLES  HENDRIE." 

Indorsed:  "GEORGE  STOKEV." 

is  not  a  bill  of  exchange,  but  a  "  check  for  funds  deposited  in  bank,"  and  is 
not  entitled,  under  the  laws  of  this  Territory,  to  any  days  of  grace,  and  the 
indorser  is  liable  without  any  notice  of  its  non-payment.  McDonald  v. 
S/o/.v.v,  :!88. 

Clianicte.risLics  of.  A  bank  check  is  always  drawn  on  a  bank  or  banker,  and 
is  an  absolute  appropriation  of  a  certain  sum  in  the  hands  of  the  banker; 
it  is  payable  immediately  on  presentation  on  the  day  designated,  and  pre- 
sented only  for  payment,  and  is  not  allowed  any  days  of  grace.  Ib. 

BANKRUPTCY. 

Preference  to  creditor.  In  this  case  the  court  found  that  a  firm  had  committed 
an  act  of  bankruptcy  by  giving  preference  to  a  creditor.  Story  v  Nowlan, 
360. 

See  PARTNERSHIP,  5. 

BILL  OF  EXCHANGE. 
See  BANK  CHECK. 

BLACKFOOT  TRIBE. 
See  STATUTORY  CONSTRUCTION,  28,  28. 

BOUNDARIES. 
See  MINING  CLAIMS,  3. 

CASES  AFFIRMED,  DOUBTED  OR  DENIED. 

Brown  r.  Gaston  &  Simpson  G.  &  S.  M.  Co.,  57,  affirmed.    See  Lamb  r.  G.  &  8L 

M.  Co.,  64. 

Clary  v.  Holland,  24  Cal.  147.  doubted.     See  Lomme  v.  Sweeney,  584. 
Collier  r.  Field,  012,  affirmed.     See  Koder  c.  Krvin,  632. 


720  INDEX. 

Davis  v.  Hendrie,  499,  affirmed.    See  Collier  v.  Field,  612. 

Donnell  t».  Humphreys,  518,  affirmed.    See  Taylor  v .  Halter,  688. 

Gallagher  v.  Barey,  457,  affirmed.    See  Mochon  v.  Sullivan,  470;  Woolman  o 

Garringer,  535 ;  Creighton  v.  Hershfield,  639. 

Hoffman  v.  Walton,  36  Mo.  613,  doubted.     See  Black  v.  Appolonio,  342. 
Kleinschmidt  v.  Dunphy,  118,  affinned.     See  Aylesworth  v.  Reeoe,  JJOO. 
Mason  v.  Germain,  263,  affirmed.     See  Black  v.  Appolouio,  342. 
Mochon  v.  Sullivan,  470,  affirmed.     See  Simonton  v.  Kelly,  483. 
Nickerson  v.  Chatterton,  7  Cal.  568,  doubted.    See  Lomme  u.  Sweeney,  684. 
Travis  v.  McCormick,  148,  affirmed.     See  Same  Case,  347. 
Woolmau  v.  Garringer,  535,  affirmed.    See  Gallagher  v.  Barey,  457. 

CHANGE  OF  VENUE. 
See  VENUE. 

CHARGE  TO  JURY. 
See  PRACTICE,  5,  45,  60. 

CHATTEL  MORTGAGE. 

1.  Mortgagee  loses  lien  after  debt  matures.  A  mortgagee  of  personal  property 
loses  his  lien  thereon,  as  agent  against  a  purchaser  in  good  faith  from  the 
mortgagor  in  possession,  after  the  maturity  of  thu  mortgage  debt,  although 
the  mortgage  is  good  and  valid  for  one  year  after  it  is  recorded.  Travis  v. 
McCormick,  148. 

I.  Laches  of  mortgagee  invalidates  his  lien.  In  this  case,  the  unexplained  failure 
of  the  mortgagees  to  take  possession  of  property,  or  foreclose  their  mort- 
gage, two  months  after  the  maturity  of  their  debt,  was  laches,  and  invali- 
dated their  lien,  as  against  a  purchaser  in  good  faith.  Ib. 

3.  Duty  of  mortgagees.    The  mortgagees  of  personal  property  should  take  imme- 

diate possession  of  the  same  after  the  maturity  of  their  debt,  or  endeavor 
so  to  do  with  sufficient  diligence.  Ib. 

4.  Issue  of  diligence.     It  is  a  mixed  question  of  law  and  fact  to  determine  the 

issue  respecting  the  use  of  due  diligence  by  the  mortgagee  of  personal  prop- 
erty to  obtain  possession  of  the  same.  Travis  v.  McCormick,  347. 

6.  Diligence  —  possession  of  property.  The  mortgagee  of  personal  property,  who 
makes  no  effort  to  obtain  the  possession  thereof,  within  a  month  after  the 
maturity  of  his  debt,  does  not  use  the  diligence  that  is  required  by  law.  Ib. 

6.  Sale  of  mortgaged  property.  The  owner  of  personal  property  that  has  been 
mortgaged,  can  sell  or  exchange  the  same  without  affecting  the  validity  of 
the  mortgage.  Davis  v.  Blume,  463. 

CHECK. 
See  BANK  CHECK. 

COMPOUND  INTEREST. 
See  INTEREST,  2,  3. 

CONFESSION. 
See  CRIMINAL  LAW,  6,  7. 

CONSIDERATION. 
See  PROMISSORY  NOTE,  4,  6. 


CONSOLIDATING  SUITS. 
See  PRACTICE,  29. 


INDEX.  721 

CONSPIRACY. 

Qistt  of  action.  The  jfist  of  the  action,  upon  a  charge  of  conspiracy  ^y  two 
persons,  is  the  previous  preooucerted  agreement  or  confederation.  Daily 
v.  Redfern,  467. 

See  PLEADING,  17, 18. 

CONSTITUTIONAL  LAW. 

Statute  authorizing  verdict  by  three-fourths  of  jury  void.  The  act  of  the  legisla- 
ture of  Montana,  which  provides  that  the  verdict  of  three-fourths  of  the 
jurors  shall  have  the  same  effect  "  as  if  agreed  upon  by  the  whole  of  the 
jurors."  approved  January  15,  1869,  is  unconstitutional  and  void  in  actions 
at  common  law,  in  which  the  value  at  controversy  exceeds  $20.  Klein- 
schmidt  v.  Dunphy,  118. 

Sec  EQUITY,  2,  5;  TEKRITOBIAL,  AUDITOR,  2;  TERRITORIAL,  WARRANT,  3. 

CONTRACT. 

I.  .Struices —  special  contract  —  absence  of  employee.  A  servant,  who  is  employed 
under  a  contract  for  a  certain  time,  at  a  fixed  price,  cannot  recover  on  the 
contract  for  the  services  he  has  rendered,  if  he  has  left  or  been  compelled 
to  leave  his  employers  through  their  conduct,  before  the  stipulated  time 
expires.  Isaacs  v.  McAndreirx,  437. 

','..  SVn'/crs  —  effect  of  special  contract  —  time  of  service.  A  party,  who  is  employed 
under  a  written  contract,  as  a  superintendent  of  mines  for  five  years,  at  a 
salary  of  §4,000  per  year,  but  in  which  no  time  for  its  payment  is  fixed,  must 
perform  services  for  the  period  of  five  years,  before  he  can  bring  an  action 
for  any  part  of  his  salary.  Jb. 

3.  Service* —  time  of  payment — -.so/on/.     If  a  written  contract  does  not  fix  the 

time  for  the  payment  of  a  salary  to  a  servant,  who  is  to  work  for  five  years, 
at  a  certain  salary  per  year,  the  law  will  establish  such  time  at  the  end  of 
the  five  years.  Ib. 

4.  Services — entire  contract  —  remedies  —  parti/  prevented  from  performing  con- 

tract. A  party  who  is  prevented  from  performing  an  entire  contract  by  the 
other  party  has  three  remedies;  he  may  keep  himself  ready,  willing  and 
able  to  perform  the  contract  until  it  expires,  and  then  sue  on  the  contract, 
or  sue  upon  the  quantum  mernit  for  what  his  services  are  actually  worth,  or 
sue  for  damages  for  breach  of  the  contract  by  the  other  party.  Ib. 
a.  For  Montana  currency  construed— salary  for  services.  Under  a  contract, 
which  provides  that  a  salary  for  services  shall  be  at  the  rate  of  $4,000  a 
year,  in  Montana  currency,  allowing  greenbacks  to  be  worth  90  cents  of  the 
dollar  of  said  currency,  the  amount  of  such  salary  is  $4,000  per  year.  Ib. 

6.  Place    of   performance    and    demand.       Under    a    contract    that    is    made 

in  New  York  to  be  performed  in  Montana,  in  which  the  place  of  payment 
for  services  is  not  fixed,  a  demand  for  payment  must  be  made  in  New  York, 
if  the  employers  have  their  domicile  there.  Ib. 

7.  Hate    of    interest   after   demand  for   payment  for   services.     In    an    action 

to  recover  for  services  performed  in  Montana,  under  a  contract  made  in 
New  York,  which  does  not  fix  the  rate  of  interest,  if  the  payment  for  ser- 
vices is  refused  after  a  demand  therefor  in  New  York,  the  rate  of  interest 
would  be  that  prescribed  by  the  laws  of  this  Territory.  Ib. 

8.  Charge  OH  buxinfxs  —  personal   liahiliti/.      An    agreement    that    the   travel- 

ing and  living  expenses  of  a  superintendent  of  mines  shall  be  a  charge 
to  and  borne  by  the  joint  property  and  business,  makes  them  liens  upon 
such  property  and  business,  but  does  not  create  any  personal  liability  until 
the  remedy  against  the  property  has  been  exhausted.  Ib. 

See  EVIDENCE,  3;  HUSBAND  AND  WIFE. 

CONTRACT  TO  PAY  GOLD  DUST. 

Promissory  note— merger  —  agreement.  \  contract  for  the  payment  of  gold 
dust,  in  the  nature  of  a  promissory  note,  is  not  merged  in  an  agreement,  by 
which  the  time  for  its  payment  is  extended,  the  rate  of  interest  reduced, 
and  the  means  of  paying  it  placed  in  the  hands  of  the  parties  liable  thereon  ; 
and  this  agreement  cannot  be  introduced  in  evidence  under  the  allega- 
tions of  the  answer  that  the  agreement  released  the  parties  f re  m  auy 
liability  to  pay  the  gold  dust.  Creighton  v.  Vanderlip.  400. 

VOL.  I.  —  91 


722  INDEX. 

CONSTRUCTION  OF  CONTRACT. 

See  AGREEMENT. 

CORPORATION. 
See  ATTORNEY  IN  FACT. 

COSTS. 

When  presumed  correct.  It  is  a  presumption  that  the  costs  enterei  by  the  clerk, 
in  a  judgment,  have  been  properly  ascertained  and  taxed.  "Warden  r. 
Wheelock,  49. 

See  REPLEVIN,  1,  3. 

COUNTER-CLAIM. 
See  PLEADING,  1C;  PRACTICE,  70. 

COUNTY  BONDS. 

1.  Validity  of  statute  relating  to  county  bonds.    The  act  approved  November  22, 

1867,  authorizing  county  commissioners  to  call  in  all  outstanding  orders 
against  the  treasury  of  their  respective  counties,  and  issue  bonds  in  lieu 
thereof  is  valid.  Thomas  v.  Smith,  21. 

2.  Power  of  commissioners  in  issuing  county  bonds.    The  county  commissioners 

of  a  county  cannot  require  the  holders  of  the  evidences  of  its  indebtedness 
to  surrender  the  same.  The  act  approved  November  22,  1867,  confers  upon 
county  commissioners  the  power  to  issue  bonds  in  the  place  of  outstanding 
orders  which  have  been  voluntarily  presented  for  that  purpose.  Ib. 

3.  Statute  relating  to  payment  of  county  warrants  not  repealed.    The  act  approved 

November  19,  1867,  entitled  "An  act  defining  the  duties  of  county  treas- 
urers, and  the  payment  of  county  warrants,"  is  not  repealed  by  the  act 
relating  to  county  bonds,  approved  November  22,  1867.  Ib. 

4.  Duty  of  county  treasurer  —  power  of  county  commissioners.    The  treasurer 

must  pay,  upon  county  warrants,  money  in  the  treasury  of  the  county  which 
is  not  otherwise  appropriated  by  law.  An  order  forbidding  the  treasurer 
to  pay  such  warrants,  passed  by  the  county  commissioners,  is  void.  Ib. 

COUNTY  COMMISSIONERS. 
See  COUNTY  BONDS. 

COUNTY  RECORDER. 

Authority  —  stamps.  A  county  recorder  is  not  authorized  to  determine  the 
value  of  gold  dust  described  in  a  mortgage  which  is  presented  to  him  for 
record,  and  cannot  know  what  stamp  should  be  affixed  thereto  before  he 
records  it.  Qriffikh  v.  Hershfield,  60. 

COUNTY  TREASURER. 
See  COUNTY  BONDS. 

COUNTY  WARRANTS. 

1.  Interest  on,  not  indorsed  by  treasurer.    The  neglect  of  the  county  treasurer  to 

properly  indorse  a  county  warrant  that  has  been  duly  presented  to  him  for 
payment,  does  not  release  the  county  from  its  liability  to  pay  the  interest 
authorized  by  the  statute,  and  the  court  will  regard  the  indorsement  as 
made,  because  it  should  have  been  made.  Territory  ex  rel.  L,argey  v.  Gil- 
bert, 371. 

2.  Equity  —  maxim  applied  —  mandamus.      An  application  for  a  writ  of  man- 

damus is  an  equitable  proceeding;  and  the  maxim  in  equity  that  "equity 
looks  upon  that  as  done  which  ought  to  have  been  done,"  is  applicable  to 
this  case.  Ib. 

See  COUNTY  BONDS  ;  STATUTORY  CONSTRUCTION,  13,  14,  15. 


INDEX.  723 

COURTS. 

Cannot  legislate —  limitation.  Courts  cannot  legislate  and  exempt  parties  from 
the  operation  of  a  statute  of  limitation,  if  the  legislature  has  not  made  any 
exception.  Coady  v.  Reins,  424. 

See  DISTRICT  COURTS. 


CRIMINAL  LAW. 

1.  Assault  with  deadly  weapon  —  defense-.    On  the  trial  of  a  party  indicted  for  an 

assault  with  a  deadly  weapon,  with  intent  to  inflict  upon  D.  a  bodily  injury, 
it  is  not  a  defense,  nor  a  part  of  the  res  gestce,  that  D.,  before  the  assault 
was  committed,  had  wrongfully  deprived  defendant  of  the  use  of  water, 
and  thereby  prevented  him  from  working  his  mining  ground.  Territory  of 
Montana  v.  D-rennan,  41. 

2.  Extortion.     A  person  who  demands  and  receives  illegal  fees  as  an  officer,  or 

under  the  color  of  his  office,  is  guilty  of  extortion.     Ming  v.  Truett,  $£i. 
8.  Fornication.  Fornication  is  the  carnal  and  unlawful  intercourse  of  an  un- 
married person  with  the  opposite  sex.     Territory  of  Montana  v.  Whitcomb, 
359. 

4.  Adultery.     Adultery  is  the  unlawful  sexual  intercourse,  or  open  and  unlaw- 

ful living  together  of  a  man  and  woman,  when  one  or  both  of  them  are 
married,  Tb. 

5.  Evidence  of  fornication — unmarried.     A  party,  who  has  been  indicted  for  the 

crime  of  fornication,  cannot  be  convicted  unless  it  is  alleged  and  proved 
that  he  was  unmarried  at  the  time  specified  in  the  indictment.  Ib. 
8.  Evidence  —  conviction  on  confessions.     The  testimony  of  a  confession  of  guilt 
by  the  accused,  which  is  not  corroborated  by  any  other  evidence,  is  insuf- 
ficient to  sustain  a  conviction.     Territory  of  Montana  v.  McClin,  394. 

7.  Confessions  to  officers.     Confessions  of  guilt  by  the  accused  cannot  be  ad- 

mitted in  evidence,  if  they  were  not  made  voluntarily:  and  such  con- 
fessions, made  to  an  officer  having  the  accused  in  custody,  will  be  rejected 
if  they  were  made  after  the  officer  had  said  that  it  would  be  better  for  him 
to  confess  his  guilt.  Ib. 

See  INDICTMENT. 

CUSTOM. 
See  MINING  CLAIMS,  3,  4 ;  MINING  CUSTOMS. 

DAMAGES. 

1.  Profits  on  resale  of  goods  too  remote.      The  profits  which  might  have  been 

made  by  the  resale  of  goods  are  too  remote  to  sustain  an  action  for  specific 
damages.  Loeb  v.  Kamak,  l;Vi. 

2.  Measure  of,  for  distraining  rent  illegally.     In  an  action  to  recover  damages  for 

the  wrongful  taking  and  conversion  of  money  by  another  under  a  distress 
warrant  for  rent  due  from  a  third  person,  the  part 3"  is  entitled  to  recover 
the  amount  that  was  so  taken  and  converted,  with  legal  interest  for  its  de- 
tention, and  exemplary  damages,  liolun  v.  Dunphy,  333. 

8.  Awarding  of  exemplary  — recklessness.     Kxemplary  damages  are  only  given 

when  a  willful  act  is  complained  of,  or  there  is  either  a  wanton  recklesanen 
or  a  deliberate  intention  to  injure.  Ib. 

See  DKED,  .">,  4 ;  INJUNCTION,  2.   1.  (5,  ",' :    PARTNERSHIP,  6;  FLBADING,  8; 

ilKPT.KVTV,  2,  10,  11. 


DAYS  OF  < JR ACE. 
See  BANK  CHECK. 

DECLARATION. 

;  EVIDBNCK,  1. 


724  INDEX. 

DEED. 

L  Extrinsic  evidence  of  ditches  described.  In  determining  what  property  is 
conveyed  by  a  deed,  which  describes  the  same  as  "  the  ditches  known  as 
the  Silver  Bow  Company's  ditches,"  "and  more  particularly  known  as  the 
Humphrey  and  Allison  ditches,"  the  court  should  consider  extrinsic  parol 
evidence,  tending  to  prove  that  the  ditch  known  as  the  "  Park  ditch  "  was 
one  of  the  said  ditches ;  that  it  was  necessary  to  convey  the  water  to  the 
said  ditches;  and  that  the  said  ditches  would  be  of  no  value  without  the 
"Park  ditch."  Donnettv.  Humphreys,  518. 

'2.  Description  of  property — fork  of  yulch  —  parol  evidence.  Parol  evidence  is 
not  admissible  to  show  that  the  grantors  in  a  deed,  in  which  the  property  is 
described  as  "all  the  water  of  the  right-hand  fork  of  Oro  Fino  gulch," 
intended  to  convey  the  water  of  the  left-hand  fork  of  the  same  gulch.  Tay- 
lor v.  Hotter,  688. 

3.  Breach  of  'warranty —  measure  of  damages.    The  measure  of  damages  against 

grantors,  who  have  warranted  the  title  and  agreed  to  defend  the  same  in 
the  deed,  is  the  value  of  the  property  at  the  time  the  conveyance  is  made 
and  interest  thereon,  and  the  necessary  costs,  expenses  and  reasonable 
counsel  fees  incurred  in  defending  the  title.  Ib. 

4.  Consideration  —  damages  —  gold  dnxt —  dollars.     In  an  action  to  recover  dam- 

ages for  the  breach  of  warranty  in  a  deed,  the  consideration  of  which  is 
"two  thousand  dollars  in  clean  gulch  gold  dust,"  only  $2,000  in  currency 
can  be  collected  as  damages  for  the  value  of  the  consideration.  Ib. 

5.  Interpretation  —  consideration  — words  of  bargain  and  sale.    The  words  "re- 

mised, released  and  quit-claimed"  in  a  deed,  in  which  the  consideration 
is  the  full  value  of  the  property,  and  the  grantors  have  warranted  the 
title,  are  words  of  bargain  and  sale,  which  convey  the  property  described. 
Ib. 

6.  Acknowledgment.    A  deed  which  is  not  acknowledged  or  recorded  is  good 

between  the  parties.     Lb. 

See  PAROL,  EVIDENCE,  2 ;  TRUSTEE. 

DEFAULT. 
See  PRACTICE,  6,  7, 13,  26. 

DEMAND. 
See  REPLEVIN,  4, 16. 

DEMAND  NOTE. 
See  PROMISSORY  NOTE,  2. 

DEMURRER. 

See  PRACTICE,  85. 

DEPOSITION. 

1.  When  certificate  is  insufficient .    The  certificate  of  a  deposition,  which  does 

not  state  that  the  witness  was  sworn  before  giving  his  evidence,  or  that  it 
was  read  to,  or  corrected  by,  the  witness,  is  insufficient.  McCormick  v. 
Largey.  158. 

2.  Taken  by  notary  public  of  a  State.     A  deposition,  which  has  been  taken  by  a 

notary  public  in  any  State,  cannot  be  read  in  evidence  in  the  courts  of  this 
Territory.  Ib. 

:>.  Presumption  in  favor  of  ruling  of  court  bdoiv.  If  the  transcript  does  not 
contain  the  certificate  of  a  deposition,  this  court  will  presume  in  favor  of 
the  court  below  that  such  certificate  is  insufficient,  although  the  clerk  says 
in  a  note  in  the  transcript,  "Here  follows  the  proper  certificate."  Ib. 

4.  Narrative  form.  A  deposition,  which  is  taken  in  the  narrative  form  is  legal. 
Ib. 

DESCENT. 

Of  quarts  lodes.  The  statutes  of  this  Territory,  which  regulates  the  descent 
and  distribution  of  real  property,  are  applicable  to  quartz  lodes.  Carhart 
v.  Montana  Mineral,  etc.*  Co.,  245. 


INDEX.  726 

DISMISSAL  OP  ACTION. 

A  flnal  judgment.  The  dismissal  of  an  action  is,  in  effect,  a  final  judgment 
against  the  plaintiff,  although  he  has  the  right  to  bring  a  new  action  for  the 
same  subject-matter.  Dahler  v.  Steele,  20C. 

DISTRAINT  FOR  RENT. 
See  DAMAGES,  2;  LANDLORD  AND  TENANT. 

DISTRICT  COURTS. 

1.  Not  federal  courts.    The  district  courts  of  this  Territory,  created  by  congress, 

are  not  federal  courts  contemplated  by  the  constitution.  KleinHchmidt  v. 
Dunphy,  118. 

2.  Jurisdiction.     The  district  courts  of  the  Territory,  created  by  congress,  are 

not  courts  of  the  United  States.     Sanders  v.  Farwell,  599. 

8.  Equity — citizenship  of  parties.  The  district  courts  of  the  Territory,  exer- 
cising the  jurisdiction  of  the  circuit  courts  of  the  United  States,  have  no 
jurisdiction  of  a  suit  in  equity  between  citizens  of  the  Territory.  Ib. 

4.  Equity  — The  district  courts  of  the  United  States  have  no  jurisdiction  to 
determine  equity  causes.  Ib. 

DIVERSION  OF  WATER. 
See  WATER  RIGHTS,  2,  3 ;  PLEADING,  6. 

EJECTMENT. 

Proof — title — possession.  In  an  action  of  ejectment,  the  plaintiff  must  prove 
that,  at  the  time  the  suit  was  brought,  the  title  or  right  to  the  immediate 
possession  of  the  property  was  in  himself,  and  that  the  defendant  unlaw- 
fully withheld  the  possession  of  the  same.  Herbert  v.  King,  475. 

See  ADMINISTRATOR. 

ENTRY  AND  DETAINER. 

See  PLEADING  20,  22. 

EQUITY. 

1.  Trial  of  suit  —  decree — finilinqs  of  jury.    A  suit  in  equity  is  properly  tried  by 

the  court  that  bases  the  judgment  and  decree  upon  the  pleadings,  evidence 
and  proceedings  in  the  case  in  accordance  with  its  convictions,  and  without 
any  regard  to  the  findings  of  the  jury  upon  questions  that  were  submitted 
to  aid  the  conscience  of  the  court,  or  any  other  considerations.  Gallagher 
v.  /iu.sf//,  457. 

2.  Equity  ami  law  —  power  of  legislature  over  proceedings.     The  territorial  leg- 


islature ci 
tions  at  Li 
jurisdictii 


3.  Ca 


n  prescribe  the  forms  of  proceedings  in  cases  in  equity  and  ac- 
v,  but  cannot  destroy  or  blend  together  the  separate  and  distinct 
us  of  chancery  and  common  law,  which  have  been  conferred 
s  by  the  organic  act.  Ib. 

ity  —  equitable,  ili'fetise  —  trial  Inj  jury- — decree.  Cases  in  equit}*. 
iquitable  relief  is  demanded,  and  actions  at  law,  in  which  an 
equitable  defense  is  made,  cannot  be  tried  by  a  jury  as  at  law,  but  the  de- 
cree must  be  rendered  by  the  judge,  sitting  as  a  chancellor  in  a  court  of 
chancery.  Ib. 

4.  Jury  trial  — void  decree.  A  decree,  which  is  rendered  upon  the  verdict  of  a 
jurv  in  an  equitable  action,  that  has  been  tried  as  a  suit  at  common  law,  is 
void.  ( 'm'uliton  ft  -//.  v.lh'rxlijhld  ft  al.,  039. 

D  JuriNilirtinn  "./'  roiirtu  ini'li'i-  nraanic.  art.  The  jurisdiction  as  to  law  and 
equity,  of  the  courts  of  the  Territory  created  by  the  organic  act,  are  as 
separate  and  distinct  as  those  that  were  known  and  defined  at  the  time  of 
the  adoption  of  the  constitution.  Ib. 

6.  A  rt  i. nix  'it,  lair— trial — jiiri*<lirti<>ii .  A  court  has  no  jurisdiction  in  this 
Territory  to  try  a  common-law  action  as  a  suit  in  equity;  and  it  cannot  try 
an  equitable  action  as  an  action  at  common  law.  Ib. 


726  INDEX. 

7.  Foreclosure  of  mortgage— personal  judgment.  In  an  equitable  action  to  fore- 
close a  mortgage,  a  court  cannot  render  a  personal  judgment  against  the 
mortgagors,  and  decree  a  sale  of  the  mortgaged  premises  to  satisfy  such 
judgment. 

See  COUNTY  WARRANTS,  2 ;  DISTRICT  COURT. 

EQUITY  CAUSES. 
See  TRIAL  BY  JURY. 

ESTOPPEL. 

Denial  of  name—  promissory  note.  The  maker  of  a  promissory  note  is  estopped 
from  denying  his  name  or  that  of  the  payee  as  it  is  written  in  the  note. 
Kemp  v.  McCormick,  420. 

See  MARRIED  WOMEN',  3. 

EVIDENCE. 

1.  Declarations  of  one  party  made  in  absence  of  another.    The  declarations  of 

parties  concerning  a  mortgage  executed  by  them  to  one  of  the  defendants, 
and  made  in  the  absence  of  this  defendant,  are  admissible,  if  evidence  has 
been  introduced  tending  to  show  collusion  between  the  parties  respecting 
the  instrument.  Kleinschmidt  v.  Dunphy,  118. 

2.  Exemplary  damages  —  mitigation  —  legal  advice.     In  a  suit  to  recover  exem- 

plary damages,  a  party  can  prove,  as  a  mitigating  fact,  that  he  had  acted  in 
good  faith  under  the  advice  of  an  attorney.  Bokm  v.  Dunphy,  333. 

3.  Proof  of  special  contract.    A  party  who  brings  an  action  upon  a  special  con- 

tract cannot  recover,  if  he  does  not  establish  the  contract,  as  alleged  in  his 
complaint,  and  prove  that  he  has  complied  with  its  terms.  Simonton  v. 
Kelly,  363. 

4.  Injury  to  the  person.    In  proving  the  actual  injury  caused  by  the  unskillful 

treatment  of  a  patient  by  a  physician,  it  is  competent  to  show  all  the  facts 
resulting  from  the  injury,  from  the  time  the  right  of  action  accrued  to 
the  verdict.  Coady  v.  Reins,  424. 

5.  Letter  rejected  as  Itearsay  —  replevin.     In  an  action  to  replevy  certain  cattle 

from  a  party  who  had  traded  mules  for  them,  the  plaintiff  cannot  introduce 
as  testimony  a  letter  that  was  written  by  another  party  to  the  sheriff, 
stating  that  he  had  a  mortgage  upon  two  of  the  mules,  which  were  in  the 
custody  of  the  sheriff,  under  attachment.  Davis  v.  Blume,  463. 

6.  Appurtenance  —  (/rant.    Extrinsic  evidence  is  admissible  to  show  the  nature 

and  extent  of  an  appurtenance,  which  passes  with  the  principal  thing 
granted.  Donnell  y.  Humphreys,  518. 

7.  General  reputation  of  ownership — fraud.     Evidence  of  general  reputation  in 

the  neighborhood,  concerning  the  ownership  of  certain  cattle  by  a  married 
woman,  is  competent  to  rebut  the  allegation  that  she  had  conspired  to  deceive 
and  defraud  the  creditors  of  her  husband.  Griswold  v.  Boley,  545. 

8.  Replevin  undertaking  —  defense  of  sureties.     It  is  not  competent  for  the  sure- 

ties, in  a  replevin  undertaking,  to  prove  that  the  owner  had  no  attachable 
interest  in  the  property,  or  that  the  attaching  creditor  was  not  injured  by 
their  failure  to  return  the  same.  Caldicell  v.  Gans,  570. 

See  AGENT;  CONTRACT  TO  PAY  GOLD  DUST;  CRIMINAL  LAW,  5,  6,  7;  DEED; 
DEPOSITION;  EXTRINSIC  EVIDENCE  ;  INDIANS,  3;  INJUNCTION,  1,  2 ;  PAROL 
EVIDENCE ;  PRINCIPAL  AND  AGENT,  1 ;  QUARTZ  CLAIM;  TRKSPASS. 

EXCEPTIONS. 

Allowance  of — statement.  Exceptions  will  be  considered  by  this  court  if  there 
is  a  statement  at  the  beginning  of  the  bill  that  the  exceptions  were  taken 
at  the  proper  time  and  allowed.  Terr-itory  of  Montana  v.  McClin,  394. 

See  PRACTICE,  11,  24,  :!1J,  40,  50,  57,  58.  62,  80. 

EXECUTION. 

Issued. for  assignee  of  judgment  —  collection  of.  The  court  cau  direct  an  oxoou- 
tion  to  be  issued  in  favor  of  the  assignee  of  a  judgment,  on  motion  and 


INDEX.  727 

proof  of  its  assignment,  bnt  it  cannot  order  the  officer  to  collect  an  exec  a 
tion  in  a  particular  manner.    McGregor  v.  Well*,  Fargo  &  Co.,  142. 

See  SHERIFF'S  RETURN. 

EXEMPLARY  DAMAGES. 
See  DAMAGES,  3;  EVIDENCE,  2;  I'.v  ICTNERSHIP,  6. 

EXTORTION. 
See  CRIMINAL  LAW,  2. 

EXTRINSIC  EVIDENCE. 
See  AGREEMENT  ;  DEED  ;  EVIDENCE,  1,  2, 

FEDERAL  COURTS. 

See  DISTRICT  COURTS. 

FORNICATION. 
See  CRIMINAL,  LAW,  3,  5. 

FORFEITURE  OF  GOODS. 

License.  Goods  were  legally  seized  and  forfeited  under  the  laws  of  the  United 
States,  which  were  traded  for  in  the  Indian  country  in  Choteau  county, 
Montana,  by  persons  without  any  license  therefor  from  the  United  States. 
United  States  v.  One  Hundred  and  Twentij-six  Buffalo  Robes,  489. 

FRAUD. 
See  PROMISSORY  NOTES,  4,  5,  7. 

FRAUDULENT  SALE. 

Sa.le  under  execution,  set  aside  —  fraud.  The  sale  of  property  under  an  exe- 
cution to  satisfy  a  judgment  for  the  foreclosure  of  a  mortgage,  after  the 
judgment  creditor  has  released  one-half  of  the  property  from  the  mortgage 
and  judgment,  and  received  one-half  of  the  judgment,  is  fraudulent  and 
must  be  set  aside  by  the  court.  Collier  v.  Field,  612. 

GARNISHES. 

When  protected  by  stay  of  execution.  If  an  action  is  pending  between  M.  and  W., 
and  W.  is  served  with  garnishment  as  the  debtor  of  M.  in  an  attachment 
suit  subsequently  commenced,  the  court  should  proceed  with  the  first  action 
to  final  judgment,  and  protect  W.,  as  garnishee,  if  necessary,  by  staying 
execution  until  the  attachment  suit  is  determined.  Marden  v.  Wheelock,  49. 

GENERAL  VERDICT. 

Special  findings.  A  general  verdict  should  not  be  set  aside,  unless  the  apeoia. 
flnding  i?  undoubtedly  inconsistent  with  it.  Febes  v.Tiernan,  179. 

GRACE. 
See  15ANK  CHECK. 

GOLD  DUST. 
See  CONTRACT  TO  PAY  IN  GOLD  DUST  ;  COUNTY  RECORDKB. 

GOVERNOR. 
See  TERRITORIAL,  AUDITOR,  4. 


728  INDEX. 

GRANT. 

1.  Of  water  ditch  —  rights  and  incidents.    The  grant  of  a  water  ditch,  by  general 

words,  includes  the  excavated  channel,  the  rights  to  the  water  by  which 
it  is  supplied  and  made  valuable,  and  another  ditch  which  conveys  the  water 
to  it.  DonneU  v.  Humphrey,  518. 

2.  Appurtenance — yrant  of  water  ditch,     A  water  ditch  cannot  be  appurtenant 

to  another  water  ditch  and  pass  as  an  incident  thereto  under  a  grant  of  the 
same.  Ib. 

8.  Part  of  subject-matter.  The  law  distinguishes  between  that  which  passes  u 
an  appurtenance,  and  that  which  passes  as  a  part  of  the  subject-matter.  Ib. 

GRANTOR. 
See  TRUSTEE. 

HEARSAY. 
See  AGENT. 

HIGHWAY. 
See  STATUTORY  CONSTRUCTION,  18 ;  MINING  CLAIMS,  7 

HUSBAND  AND  WIFE. 

Void  contract  and  judgment.  A  contract  by  which  a  party  agrees  to  perform 
services  for  three  persons,  one  of  whom  is  his  wife,  and  a  judgment  obtained 
thereon,  are  void  at  common  law  as  between  the  husband  and  his  wife. 
Isaacs  v.  McAndrew,  437. 

See  MARRIED  WOMEN. 

ILLEGAL  FEES. 

"Recovery  of.  A  civil  suit  to  recover  illegal  fees,  which  had  been  demanded  and 
received  under  color  of  office,  can  be  brought  against  an  officer  who  has  not 
been  convicted  in  a  criminal  action.  Ming  v.  Truett,  322. 

See  CRIMINAL  LAW,  2;  INDICTMENT. 

INDIANS. 

1.  License  to  trade  with  —  approval.    A  party  cannot  trade  with  Indians  in  the 

Indian  country  under  a  license  which  has  not  been  approved  by  the  com- 
missioner of  Indian  affairs .  United  Stales  v.  One  Hundred  and  Ninety-six 
Buffalo  Robes,  489. 

2.  License  to  trade  with,  not  transferable.    A  license  to  trade  with  Indians  in  the 

Indian  country  is  a  personal  privilege  to  the  person  therein  named,  and 
cannot  be  transferred  to  other  parties.  Ib. 

3.  Settlements  of  white  inert.     Evidence  that  there  are  settlements  of  white  men 

in  a  certain  section  of  Montana,  is  not  admissible  to  prove  that  it  is  not  a 
part  of  the  Indian  country.  Ib. 

t.  Montana  is  Indian  country.  All  the  country  within  the  limits  of  Montana 
Territory  is  regarded  as  Indian  country,  under  the  laws  of  the  United  Stateg 
regulating  trade  and  intercourse  with  Indian  tribes.  Ib. 

See  FORFEITURE  OF  GOODS  ;  STATUTORY  CONSTRUCTION,  24-29. 

INDIAN  COUNTRY. 
See  FORFEITURE  OF  GOODS  ;  STATUTORY  CONSTRUCTION,  24-29. 

INDIANS  — TRADING  WITH. 
See  FORFEITURE  OF  GOODS. 


INDEX.  729 

INDICTMENT. 

Officer  tukinii  Illegal  fees.  An  indictment  against  a  party  for  taking  illegal f eei 
as  a  justice  of  the  peace,  must  allege  that  he  was  such  officer.  Territory  of 
Montana  v.  McElroy,  86. 

INDORSEMENT. 
See  BANK  CHECK. 

INDORSERS. 
See  PROMISSORY  NOTE,  1. 

INJUNCTION. 

L  Miners1  dam  to  stop  tailings.  It  is  not  an  abuse  of  discretion  for  a  court  to 
refuse  to  enjoin  parties  from  building  a  darn  upon  their  mining  ground,  to 
prevent  tailings  from  injuring  their  property.  Nelson  v.  O'Neal,  284. 

2.  Evidence  in  s»if(  on  injunction  bond — dnmnijes.  In  an  action  upon  an  injunction 
bond,  the  obligors  may  prove  the  facts  that  entitle  them  to  the  injunction 
in  mitigation  of  damages,  if  the  injunction  has  been  dissolved  before  the 
merits  of  the  case  have  been  adjudicated.  Stuart  v.  Miller,  301. 

8.  Dissolution  of  injunction — evidence.  The  dissolution  of  an  injunction  before 
the  case  has  been  finally  determined,  is  prima  facie  evidence  that  the  in  junc- 
tion was  improperly  granted.  Ib. 

4.  Parties  to  bonds— damages  apportioned.  All  the  parties  to  a  bond  that  has 
been  executed  jointly  should  be  brought  iuto  court,  so  that  the  damages 
claimed  can  be  apportioned.  Ib. 

6.  Damages  for  lost  time.  In  an  action  to  recover  the  damages  caused  by  the 
wrongful  suing  out  of  an  injunction,  a  party  can  recover  the  value  of  his 
labor  for  the  time  he  was  compelled  to  remain  idle  by  being  restrained  from 
working  his  mining  ground,  Campbell  v.  Metcalf,  378. 

6.  liond — damages  not  recoverable —  attorneys' fees.     In  a  suit  upon  an  injunc- 

tion bond,  the  expenses  and  fees  of  attorneys  in  the  action  in  which  the 
writ  was  issued  cannot  be  assessed  as  damages  sustained  by  the  wrongful 
granting  of  the  injunction.  Ib. 

7.  Damages  —  assessment  anil  apportionment  by  jury  —  attorneys'  fees.   If  attor- 

neys' fees  are  paid  for  all  the  services  rendered  in  an  action,  including 
those  performed  in  procuring  the  dissolution  of  an  injunction,  the  party 
claiming  damages  must  prove  the  amount  of  the  fees  that  was  so  paid  for 
procuring  the  dissolution  of  the  injunction.  A  jury  cannot  apportion  the 
fees  paid  in  the  action  and  find  the  value  of  certain  services,  without  evi- 
dence of  the  same.  Ib. 

8.  Granting  of — factx  of  case  — refusal.  It  appeared  in  this  case  that  the  head  of  a 

ditch  was  fifteen  miles  below  certain  mining  ground ;  that  the  owners  of  the 
ditch,  who  were  the  first  appropriators  of  the  water,  were  compelled  on 
account  of  the  working  of  the  ground,  to  construct  and  maintain  a  sand  reser- 
voir and  use  the  water  ten  minutes  daily  to  clean  it,  and  employ,  during  this 
time,  one  man,  who  was  also  employed  on  the  ditch  for  other  purposes.  The 
court  held  that  the  injuries  complained  of  did  not  justify  the  granting  of  an 
injunction.  A.t,cliisonv,  Peterson,  501. 

9.  Solvency  of  parties — damages.  An  injunction  will  not  be  granted  if  the  parties 

are  solvent  and  the  complainants  have  ai;  adequate  remedy  at  law  by 
bringing  a  suit  for  damages.  II). 

10.  Hemedy —  injury.     Courts   require   a   very   strong  case  for  the  granting  of 
an  injunction  which  will  cause  more  injury  than  it  will  remedy.  Ib. 

INTEREST. 

1.  On  judgments.    Judgments  bear  interest  in  the  Territory  at  the  rate  of  ten 

per  centum  per  annum,     ^rit'ti/li  v.  llershjii'ld,  60. 

2.  Compound  interest —  not  ullowtdin  ri/ «//.//.     Courts  of  equity  will  not  allow 

compound  interest,  if  the  contract  therefor  and  the  original  contract  were 
made  at  the  same  time  and  before  any  interest  was  due,  and  a  written 
agreement  to  pay  such  interest  shall  not  be  enforced.  Wilson  v.  Jtuvix,  163. 

3.  Compound  interest  <tt  common  law.     The  old  common-law  rule,  which  did  not 

allow  compound  interest,  has  not   been  overruled  in  the  United  States.   Ib. 

VOL.  1.  — 1)2 


730  INDEX. 

4.  Territorial  statute  regulates  simple  interest.  The  statute  of  this  Territory, 
which  establishes  the  rates  of  interest,  relates  to  simple  interest,  and  doea 
not  authorize  contracts  for  compound  interest.  Ib. 

6.  A  contract  for  payment  of  compound  interest  not  enforced.  A  party  who 
agrees  to  sell  real  and  personal  property  upon  the  payment  of  a  note,  which 
stipulates  that  the  interest  shall  be  compounded  monthly,  if  it  is  not  paid, 
is  required  to  convey  the  property  on  the  payment  of  the  principal  of  the 
note,  and  simple  interest  upon  the  same.  Ib. 

6.  Statutory  construction  —  act  prescribing  the  rate  of  interest.     Interest  is  a 

creature  of  the  statute ;  and,  under  the  laws  of  this  Territory,  the  payment 
of  interest  for  money  paid,  laid  out  and  expended  for  another,  cannot  be 
enforced  unless  it  is  averred  and  proved  that  there  has  been  unreasonable 
and  vexatious  delay.  Isaacs  v.  McAndrew,  437. 

7.  Statutory  construction  —  act  prescribing  rate  of  interest.    Under  the  second 

and  third  sections  of  the  "  Act  to  prescribe  the  rate  of  interest,"  the  legis- 
lature has  given  the  parties  to  promissory  notes  the  power  to  fix  the  rate 
of  interest  that  may  be  collected,  after  the  maturity  of  the  note,  as 
stipulated  damages.  Davis  v.  Hendrie,  499. 

8.  Interest  on  contracts.    The  second  section  of  the  act  relating  to  interest  fixes 

the  rate  of  interest  on  contracts  that  are  due,  where  there  is  no  agreement 
as  to  the  rate  thereof,  and  does  not  affect  contracts  that  are  to  become  due. 
Ib. 

9.  Promissory  note  —  interest  after  maturity  —  damages  —  penalty.    A  promissory 

note,  in  which  the  maker  agrees  to  pay  "  interest  after  maturity,  at  the 
rate  of  four  per  cent  per  month  until  paid,"  is  an  agreement  between  the 
parties  to  liquidate  the  damages  for  a  breach  of  the  contract.  This  interest 
is  not  fixed  as  a  penalty  for  the  breach  of  the  contract,  and  the  agreement 
will  be  enforced  by  the  courts.  Ib. 

See  CONTRACT,  7 ;  COUNTY  WARRANTS  ;  PROMISSORY  NOTE,  8. 

IRRIGATION. 
See  STATUTORY  CONSTRUCTION,  6,  7. 

JUDGMENT. 

Jurisdiction.  The  judgment  of  a  court  that  exceeds  its  jurisdiction  is  void. 
Creighton  v.  Hershjield,  639. 

See  INTEREST,  8,  16;  PRACTICE,  20,  21,  22,  26,  42,  51-53,  62,  66,  93. 

JUDGMENT  NUNC  PRO  TUNC. 
See  PRACTICE,  94. 

JURISDICTION. 

1.  Au  agreement  of  parties  cannot  confer  upon  this  court  jurisdiction  which  1* 
not  given  by  law.  Wilson  v.  Davis,  98 ;  Sanders  v.  Far  well,  599. 

See  DISTRICT  COURT;  EQUITY;  JUDGMENT;  PRACTICK,  19,  35,  36;  VENUE,  3. 

JURY. 

Private  knowledge,  of  fads — verdict.  A  juryman  must  render  his  verdict  ac- 
cording to  the  testimony  legally  produced  in  open  court  at  the  trial,  and 
disregard  his  private  knowledge  or  belief.  Territory  of  Montana  v.  Whit- 
comb,  359. 

See  CONSTITUTIONAL  LAW  ;  TRIAL  BY  JtTBT. 

LAND. 
See  TITLE  TO  LAND. 


INDEX.  731 

LANDLORD  AND  TENANT. 

Distraint  for  rent  superseded.  The  common- law  right  of  distraint  for  rent  is 
not  applicable  to  the  condition  of  this  Territory,  and  has  been  superseded 
by  the  statutory  remedies  which  have  been  given  to  the  Landlord.  Bohm  v. 
Dunphy,  838. 

See  DAMAGES,  2. 

LEGAL  ADVICE. 
See  EVIDENCE. 

LEGISLATIVE  POWER. 
See  EQUITY,  2. 

LEX  LOCI  CONTBACTU8. 
See  CONTRACT,  6,  7. 

LICENSE. 
8ee  STATUTORY  CONSTRUCTION,  25. 

LIEN. 
See  CHATTEL  MORTGAGE  ;  PARTNERSHIP,  8. 

LIEN  OF  MECHANIC. 
See  MECHANIC'S  LIEN. 

LOCATION  OF  LAND. 

Right  of  first.  Law  and  equity  give  the  first  locator  of  land  and  claimant  of 
water  a  sufficient  quantity  of  water  to  irrigate  his  laud.  Thorp  v.  Woodman 
168. 

See  MININE  CLAIM,  2,  3,  5,  6;  MINING  CUSTOMS,  2,  4. 

MALPRACTICE. 
See  EVIDENCE,  4;  STATUTE  OF  LIMIT ATIOW. 

MANDAMUS. 
See  COUNTY  WARRANTS,  2;  PRACTICE,  1,  2. 

MARRIED  WOMEN. 

1.  Record  of  separate  properti/.     \  married  woman,  who  records  with  the  reg- 

ister of  deeds  of  the  county  in  which  she  resides,  a  bill  of  sale  of  personal 
property  and  also  a  list  of  such  property  and  its  increase,  complies  with 
the  statute  exempting  ''  the  property  of  married  women  from  execution 
in  certain  cases,"  and  thereby  notifies  the  world  that  the  same  is  her  prop- 
erty. Grisii'olil  v.  ISnle)/,  545. 

2.  Property  —  husband— creditors.     A  married  woman,  who  has  duly  recorded 

her  property,  can  make  her  husband  her  agent  and  give  him  the  control 
and  possession  of  the  same  without  affecting  her  rights,  or  rendering  the 
property  liable  for  the  debts  of  her  husband.  Ib. 

3.  Silence  about  title  —  estoppel.    A  married  woman,  who  has  duly  recorded  her 

property,  is  not  estopped  from  assorting  her  rights  thereto,  if  she  was  silent 
when  her  husband  stated  that  he  had  the  title  to  the  same.  Ib. 

MEASURE  OF  DAMAGES. 
See  DAMAGES  :  REPLEVIN,  2,  10,  11. 


732  INDEX. 

MECHANIC'S  LIEN. 

1.  Accounts  —  appropriation  of  payments.     A  person  who  performs  labor  foi 

another  under  a  contract,  and  is  entitled  to  a  lieu  for  a  part  of  said  labor, 
and  can  have  no  lien  for  the  remainder,  can  charge  therefor  under  two  dis- 
tinct accounts.  If  the  debtor,  at  the  time  of  the  payment  of  any  sum,  fails 
to  appropriate  the  same  to  either  of  these  accounts,  the  creditor  can  do  so 
before  he  makes  out  and  files  his  lien.  Christnot  v.  M.  G.  &  8.  M.  Co.,  44. 

2.  Not  lost  by  excessive  claim.    A  laborer  does  not  lose  his  lien  for  the  amount 

actually  due,  by  claiming  a  lien  for  a  sum  in  excess  of  that  to  which  he  is 
entitled,  unless  there  is  fraud  connected  with  the  transaction.  Nolan  v.  Love- 
lock, 224. 

3.  Excessive  claims — fraud.    A    party  who,   without  any  fraudulent   intent, 

claims  in  his  complaint  and  notice  of  lien  a  larger  amount  than  that  found 
to  the  court,  does  not  destroy  his  lien  for  the  amount  actually  due.  Mason 
v.  Germaine,  263. 

4.  Assignment  of.    The  lien  of  a  mechanic  for  labor  that  has  been  performed 

follows  the  assignment  of  the  account  of  the  labor.  Ib. 

6.  Common  law —  possession.  At  common  law,  the  lieu  of  a  mechanic  for  labor 
continued  during  the  time  the  property  remained  in  his  possession,  and  was 
lost  as  soon  as  he  parted  with  its  possession.  Mochon  v.  Sullivan,  470. 

6.  Statutory  remedy.     In  this  Territory,  mechanics  are  entitled  to  liens  for 

their  labor  under  the  statute,  which  makes  them  a  charge  upon  the  property 
for  a  certain  period  from  the  commencement  of  the  labor  and  the  liens  are 
not  affected  by  the  possession  of  the  property.  Ib. 

7.  Proceedings   in,  equity.      The  lien  of    a  mechanic  is  in  the  nature  of  an 

equitable  right,  and  must  be  enforced  according  to  the  rules  and  principles 
of  a  proceeding  in  chancery.  Ib. 

8.  Statutory    construction  —  act   relating   to    mechanics'1  liens  —  personal    judg- 

ment. The  part  of  the  act  of  the  legislature  •'  securing  liens  to  mechanics," 
approved  December  30,  1864,  which  authorizes  the  rendition  of  a  personal 
judgment  as  at  law,  blends  together  law  and  equity  in  the  same  proceeding, 
and  is  void.  Ib. 

9.  Case  affirmed.    The  case  of  Mason  v.  Germain,  ante,  p.  263,  deciding  that 

the  lien  of  a  mechanic  is  not  destroyed,  if  the  court  finds  that  the  party  has 
claimed,  without  fraud,  more  than  he  was  entitled  to,  affirmed.  Black  v 
Appolonfo,  342. 

See  PLEADING,  7;  PRACTICE,  29;  STATUTORY  CONSTRUCTION,  8, 10,  31, 12. 

MERGER. 
See  CONTRACT  TO  PAY  GOLD  DUST;  PROMISSORY  NOTE,  3. 

MINING  CLAIMS. 

1.  Damages  by  custom — free  tailings.    The  first  locators  of  mining  ground  have 

no  right,  by  custom  or  otherwise,  to  allow  tailings  to  run  free  in  the  gulch, 
and  render  valueless  the  mining  claims  of  subsequent  locators  below  them. 
Lincoln  v.  Rodgers,  217. 

2.  No  remedy  for  necessary  injuries  in  working  by  first  locators.  The  first  locators 

of  mining  ground  can  work  it  with  reasonable  care  and  diligence,  and  the 
necessary  injuries  resulting  to  subsequent  locators  would  be  damnumabsque 
injuria.  Ib. 

3.  Boundaries  of  ground  for  tailings  —  custom— free  tailings.     The  boundaries 

of  ground  for  the  deposit  of  tailings  must  be  distinctly  defined  by  persons 
locating  it,  so  that  subsequent  locators  may  know  what  ground  is  vacant. 
The  custom  of  free  tailings  conflicts  with  this  rule,  and  the  defining  of  such 
boundaries  would  be  useless.  Ib. 

1.  Possession  of  mining  ground  —  presumption — mining  customs.  It  will  be 
presumed,  in  the  absence  of  evidence,  that  the  parties  in  the  possession  of 
mining  claims  hold  them  according  to  the  local  rules  and  customs  of  the 
miners  in  the  district.  Robertson  v,  Smith,  410. 

6.  Rules  of  miners  —  vented  -rights.  The  right  to  occupy,  explore  and  extract  the 
precious  metals  in  the  mineral  lands  of  the  United  States  becomes  vested 
in  the  party  who  locates  these  lands  according  to  the  local  rules  and  cus- 
toms of  the  mining  district  in  which  they  are  situated.  Ib. 

6.  Title  to  mining  claims  —  rights  of  miner*.  The  fee  in  the  land,  on  which 
mining  claims  are  located,  remains  in  the  United  States,  but  the  right  of 
miners  are  incident  to  the  fee,  and  have  been  carved  out  of  it.  Ib. 


INDEX.  733 

7.  Vested  rights  of  miners  — compensation  — highway.  Lands  of  the  United 
States,  in  which  miners  have  vested  rights,  cannot  be  taken  for  the  public 
use  for  a  highway,  if  there  is  no  act  of  the  legislature  providing  for  a  just 
compensation  to  the  miners.  Ib. 

MINING  CUSTOMS. 

1.  Effect  on  common  law.    The  rules  and  customs  of  miners  in  a  particular 

district  are  laws,  and  constitute  the  American  common  law  on  mining  for 
precious  metals.  King  v.  Edwards,  235. 

2.  Location  of  mining  ground.    The  rules  and  customs,  which  point  out  the 

manner  of  locating  mining  ground,  are  conditions  precedent,  which  must 
be  substantially  complied  with.  Ib. 

3.  Forfeiture,  presumed  when  miners  f ail  to  work  their  claims.    The  rules  and 

customs  of  miners,  that  require  locators  to  do  a  certain  amount  of  work 
upon  their  claims,  are  conditions  subsequent;  and  the  law  presumes  that 
such  locators  forfeit  their  rights  to  possess  and  mine  the  same  by  a  failure 
to  comply  therewith,  although  110  penalty  is  specified  in  such  rules  and 
customs.  Ib. 

L  Re-location  of  forfeited  mining  claims.  Mining  claims,  which  are  forfeited, 
can  be  re-located  by  any  person  who  complies  with  the  rules  and  customs 
of  the  district  in  which  they  are  situated.  Ib. 

5.  Construction  of  mining  rules  by  courts.     Courts  must  construe  mining  rules 

and  customs,  and  require  the  owners  of  mining  ground  to  develop  and  work 
it,  if  consistent  with  law.  Ib. 

6.  Rules  of  a  district  not  varied  by  those  of  another.    The  rules  and  customs  of 

the  miners  of  one  district  cannot  be  introduced  to  vary  those  of  another 
district.  Ib. 

7.  Mining  laws  presumed  to  be  in  force.    It  is  presumed  that  the  written  laws  of 

a  mining  district  are  in  force,  and  any  custom  that  conflicts  with  them 
must  be  clearly  proved.  Ib. 

8.  Mining  districts  changed  —  rested  rights.    The  extent  of  a  mining  district 

may  be  changed  by  those  who  created  it,  if  vested  rights  are  not  thereby 
interfered  with.  Ib. 

9.  Mining  customs  must  be  reasonable.     All  mining  rules  and  customs  must  be 

reasonable.  Those  which  compel  persons  to  perform  labor  in  the  district 
to  represent  their  mining  ground,  which  cannot  be  profitably  worked  with- 
out running  a  bed-rock  flume  to  it  from  another  district,  are  unreasonable. 
Ib. 

See  MINING  CLAIMS,  4-7;  STATUTORY  CONSTRUCTION,  19. 

MINING  DISTRICT. 
See  MINING*  CUSTOM,  1. 

MINING  LAW. 

See  MINING  PROSPECTING  PARTNERSHIP  ;  STATUTORY  CONSTRUCTION,  4-7, 16 

17,  19. 

MINING  PARTNERSHIP. 

1.  Authority  of  partners  in  mining  to  hire  laborers.    The  law  presumes  that  every 

member  of  a  mining  firm  has  authority  to  hire  laborers  and  make  the  firm 
liable  for  their  wages,  if  they  are  necessarily  employed  in  working  upon  the 
joint  property,  and  no  evidence  of  such  authority  is  required.  Nolan  v. 
Lovelock,  224. 

2.  Liability  for  wages  of  laborers,  with  notice.     Laborers  that  are  hired  by  one 

member  of  a  mining  firm  cannot  recover  their  wages  from  the  firm,  if  they 
had  notice  of  an  express  agreement  that  such  a  contract  must  be  ratified  by 
all  the  members.  Ib. 

MINING  PROSPECTING  PARTNERSHIP. 

1.  Llow  formed  —  rights  of  partners .  An  agreement  made  between  parties,  by 
which  some  of  them  prospect  for  gold,  and  the  others  furnish  money  and 
provisions,  for  which  they  are  to  receive  interests  in  the  mining  grounds 
that  may  be  discovered,  constitutes  a  prospecting  partnership,  and  those 
who  furnish  the  money  and  provisions  are  entitled  to  pre-empt  a*id  hold 


734  INDEX. 

mining  claims  under  the  laws  of  a  district,  which  provide  that  claims  shall 

be  allowed  the  discoverers  for  their  prospecting  partners.    Boucher  v.  Jkfut- 

verhill,  306. 
2.  Rules.    A  mining  prospecting  partnership  is  not  governed  by  the  technical 

rules  of  the  law  of  commercial  partnership.  Ib. 
8.  Mining  law  regulating,  valid.    The  mining  law  of  a  district,  which  allows 

those  who  furnish  money  and  provisions  to  the  discoverers  of  placer  gold 

mines,  to  hold  claims  without  personally  pre-empting  them,  is  not  against 

public  policy,  and  should  be  upheld.  Ib. 

MINING  RIGHTS. 

Right  of  miners  to  channel  of  creek  for  water  and  tailings.  Miners  are  entitled 
to  the  free  use  of  the  channel  of  a  creek,  so  that  the  water  will  flow  from 
their  ground,  but  they  have  no  right  to  fill  the  channel  with  tailings  that 
will  flow  down  upon  the  claims  of  other  miners.  Nelson  v.  O'Neil,  284. 

See  WATER  RIGHTS. 

MORTGAGE. 

L  Decree  of  foreclosure  —  rights  of  redemplioners.  A  decree,  which  orders  a 
sale  of  mortgaged  premises  to  satisfy  the  aggregate  amount  of  several  mort- 
gages on  separate  parcels  of  property,  made  to  secure  the  payment  of  distinct 
debts  of  different  sums,  due  at  different  times  and  bearing  different  rates  of 
interest,  and  which  does  not  preserve  the  rights  of  redemptioners,  is  void. 
Rader  v.  Ervin,  632. 

2.  Assignment  —  seal.  The  assignment  of  a  mortgage  is  valid  without  a  seal 
Ib. 

See  CHATTEL  MORTGAGE  ;  EQUITY. 

MORTGAGOR  AND  MORTGAGEE. 

See  CHATTEL  MORTGAGE. 

MORTGAGE  OF  PERSONAL  PROPERTY. 
See  CHATTEL  MORTGAGE. 

NAME. 
See  PLEADING,  15. 

NEW  TRIAL. 
See  PRACTICE,  11, 17,  26,  79,  80 ;  STATUTORY  CONSTBUOTIO»,  L. 

NONSUIT. 
See  PRACTICE,  9,  72. 

NOTICE  OF  PROTEST. 
See  PROMISSORY  NOTE,  1. 

OFFICER,  EXTORTION  BY. 
Bee  CRIMINAL  LAW.  2 :  INDICTMENT,  86. 

ORAL  INSTRUCTION. 
See  PRACTICE,  5. 

ORDER  OF  PROOF. 

See  PRACTICE,  84. 


INDEX.  736 

t  ABOL  CONTRACT. 

Name  of  principal.  The  name  of  the  principal  need  not  appear  in  the  body  of  a 
parol  contract.  Oerber  v.  Stuart,  172. 

PAROL  EVIDENCE. 

1.  Of  writing  not  in  existence.    Parol  evidence  of  a  writing,  the  existence  of 

which  is  denied  by  one  of  the  parties  to  the  action,  is  admissible,  if  the  court 
is  satisfied  that  the  facts  constituting  a  foundation  therefor  have  been 
proved.  Kleinschmidt  v.  D-unphy,  118. 

2.  Written  instrument  —  deed  —  intention  of  parties*  —  language.     Parol  contem- 

poraneous evidence  is  not  admissible  to  contradict  or  vary  the  terms  of  a 
valid  written  instrument,  but  such  evidence  is  competent  to  enable  the 
court  to  ascertain  the  intention  of  the  parties  to  the  deed,  and  make  cer- 
tain the  language  respecting  its  subject-matter,  and  give  effect  to  the  deed. 
DonneU  v.  Humphreys,  518. 

See  AGREEMENT;  DEED;  EVIDENCE. 

PARTIES. 
See  ASSAULT  AND  BATTERY  ;  INJUNCTION,  4. 

PARTNERSHIP. 

L  No  accounting  necessary  if  profits  are  not  denied.  In  an  action  to  recover  a 
certain  sum  as  the  share  of  the  profits  of  a  partnership  transaction,  a  refer- 
ence or  accounting  is  not  necessary,  if  the  answer  does  not  deny  that  such 
profits  were  made.  McCormick  v.  Largey,  158. 

2.  Partner  lias  lien  on  joint  propcrti/.     A  partner,  who  contributes  on  account  of 

the  partnership  business  any  sum  in  excess  of  his  proportion  over  his 
copartner,  has  a  lion  upon  the  joint  property  for  the  sum  so  contributed. 
\Vilxony.  Davis,  183. 

3.  Riglitx  of  partners  after  dissolution  —  sale  of  property.    The  member  of  a  part- 

nership, who  dissolves  it  by  refusing  to  continue  its  business,  cannot  corn- 
pel  his  partner  to  carry  out  one  article  of  the  copartnership,  which  stipulates 
that  the  excess  of  funds  which  either  contributes,  shall  be  paid  out  of  the 
net  earnings  of  the  partnership  property;  anil  a  court  of  equity  can  order 
the  properly  to  be  sold  to  pay  such  excess.  Ib. 

t.  Agreement  about  firojit.fi  and  iiaument  of  debta —  creditor.  A  special  agreement 
between  two  parties  by  which  one  of  them  is  to  receive  one-third  of  the 
profits  of  a  business  for  his  services,  and  the  other  is  to  bo  liable  for  the 
debts,  is  no  defense  to  an  action  commenced  against  them  as  partners  by  a 
creditor,  who  had  no  notice  or  knowledge  of  the  agreement  before  the. 
liability  accrued.  Immune  v.  Kinlzing,  290. 

5.  Effect  <>f  pita  of  bankruptcy  bi/  tme  jmrtner.  In  a  suit  against  a  firm  in  which 
one  partner  files  a  plea  of  bankruptcy,  the  court  properly  directed  a  stay  of 
proceedings  as  to  him,  and  rendered  a  judgment  for  the  amount  claimed 
by  plaintiff,  to  be  enforced  against  the  partnership  properly  and  tl\<:  indi- 
vidual property  of  the  other  partner.  Ib. 

'j.  Snrrivin;i  /tui'tni'i'  cd/i  record'  exemplary  damages  —  cridencr.  A  surviving 
partner  can  recover  exemplary  damages  for  the  wrongful  conversion  of 
partnership  property ;  but  personal  matters  that  ett'ect  only  the  deceased 
cannot  be  given  in  evidence,  although  they  might  have  been  properly 
admitted  in  aggravation  of  the  damages  during  his  life-time,  liohm  v. 
Dunphy,  15&K 
See  MINING  PARTNKKSIIIP:  MINTNC;  PROSPECTING  PARTNERSHIP. 

PARTY. 

See  ASSAULT  AND  BATTKRY;  SHERIFF. 

PERSONAL  PRoL'KRTY  MORTGAGE. 
See  CHATTEL  MORTGAGE. 

PHYSICIAN. 
8««  EVIDENCE,  4;  STATUTE  OF  LIMITATIONS. 


736  INDEX. 

PLEADING. 

1.  Complaint.    The  allegation  of  the  release  of  a  debt  due  the  plaintiff  is  sum 

ciently  set  forth  in  the  complaint  in  this  case.     Lee  v.  Hudson,  84. 

2.  Reply  required  if  answer  pray*  for  relief.     An  answer  which  contains  new 

matters  in  avoidance  needs  no  reply  under  the  statutes  of  this  Territory, 
unless  it  states  facts  that  entitle  the  defendant  to  affirmative  relief.  Car- 
uthers  v.  Pemberton,  111. 

8.  Amount  of  damages  in  complaint  not  material.  The  amount  of  damages 
claimed  in  a  complaint  is  not  a  material  averment  under  the  civil  practice 
act  of  this  Territory.  The  plaintiff  can  recover  the  damages  he  proves. 
Loeb  v.  Kamnk,  152. 

4.  Trespass  —  allegation  of  force.     Actual  force  is  not  necessary  to  constitue  a 

trespass  upon  land,  and  it  is  not  necessary  to  allege,  inactions  in  the  nature 
of  trespass,  that  the  injury  was  forcible.  Febes  v.  Tiernan,  179. 

5.  Attorney's  fees  not  recoverable  under  general  prayer.    A  reasonable  attorney's 

fee  will  not  be  awarded  to  a  party  under  a  general  prayer  for  a  certain  sum 
as  damages  and  expenses  in  protecting  "rights,  remedies  and  equities."  It 
should  be  specifically  demanded.  Wilson  v.  Davis,  183. 

6.  Insufficient  denial.     A  denial  that  defendants  "wrongfully  and  illegally" 

diverted  certain  water,  is  an  admission  of  the  act  of  diversion.  Harris  v. 
Stwntz,  212. 

7.  Complaint  on  mechanics'1  lien  must  state  a  contract.    The  complaint  of  a  party, 

who  claims  to  have  a  lien  upon  mining  ground,  for  labor  performed,  must 
state  facts  that  constitute  a  contract,  but  is  not  necessary  to  name  the  con- 
tract. Xolan  v.  Lovelock,  224. 

8.  Complaint  —  averment  of  express  promise.     Under  the  civil  practice  act,  a 

complaint  should  not  set  forth  a  promise  which  is  implied  from  the  facts 
alleged,  but  an  express  promise  must  be  averred  and  proved.  Hiyyinsv. 
Germaine,  230. 

9.  Answer  denial  of  implied  and  express  allegations.     The  denials  of  the  answer 

must  controvert  the  express  allegations  of  the  complaint,  and  those  that 
are  necessarily  implied  from  them.  Ib. 

10.  Denial  of  Indebtedness  —  issue.     In  an  action  on  an  account  for  goods  sold 
and  delivered,  a  denial  of  the  indebtedness  raises  no  material  issue.     Ib 

11.  Insufficient  dentals — i*s,ies.     An  answerthat  "denies  legally  and  lawfully" 
the  allegations  of  the  complaint,  raises  no  issue  of  fact.     Territory  e.c  rel. 
Fixk  v.  Rodrjers,  252. 

12.  Insufficient  dental.     The  denial  of  an  "unlawful  and  wrongful"  diversion 
admits  the  fact  of  the  diversion.     Toombst  v.  Hornbuckle,  286. 

13.  Complaint    on     attachment     bond  —  allegation  —  damages.      In     an    action 
against  the  sureties  on  an  attachment  undertaking  to  recover  the  damages 
caused  by  the  wrongful  suing  out  of  the  attachment  writ,  the  complaint 
must  allege  that  the  principal  has  not  paid  the  damages.    Pinney  v.  Hersh- 
field,  367. 

14.  'Comiilai nt  —  allegation  of — account  stated.     A  complaint  contains  a  suffi- 
cient allegation  of  an  account  stated,  which  sets  forth  that   the  parties 
accounted  together  on  a  certain  dajr  of,  and  concerning  certain  work  and 
labor,  the  wages  due  therefor  and  the  amounts  paid  thereon,  and  that  it  was 
found  and  ascertained  that  there  was  due  the  plaintiff  a  certain  sum  which 
the  defendants  then  arid  there  agreed  to  pay.     McFarland  v.  Cutter,  383. 

15.  Abbreviation  of  name  of  party.     A  party  can  be  described  in  a  pleading 
by  a  known  and  accepted  abbreviation  of  his  Christian  name.     Kemp  v. 
McCorinick,  420. 

16.  Countpr-claim   to  joint   debt  —  promissory  note.     In  an  action  on  a  prom- 
issory note    against    two  makers,   who  are    jointly  liable,   one    of    them 
cannot  plead  as  a  counter-claim  an  individual  debt  due  from  the  payee  to 
himself,  unless  he  alleges  that  the  payee  is  insolvent,  or  an  equitable  ground 
of  defense.    Ib. 

17.  Complaint  for  assault  and  battery —  conspiracy.     In  a  complaint  to  recover 
damages  for  an  assault  and   battery  committed  by  two  persons,  it  is  not 
necessary  to  allege  that  there  was  any  conspiracy  or  collusion  between  the 
defendants.     Daily  v.  Redj'ern,  4(57. 

18.  Complaint  for  assault  and  battery  —  absent  party  —  conspiracy.    In  an  action 
to  recover  damages  for  an  assault  and  battery  committed  by  a  party,  at 
the  instance  of  another,  who  was  absent  when  the  injury  was  inflicted,  the 
complaint  should  allege  that  there  was  a  conspiracy  between  the  parties  to 
make  them  liable.  Ib. 

19.  Failure  to  deny  complaint.    The  material  allegations  of  the  complaint  are 
admitted  if  the  answer  does  not  deny  them.     Buttard  v.  Gilette,  509. 


INDEX.  737 

30.  Forcible,  entry  —  answer — issue  of  title.  In  an  action  of  forcible  entry  and 
unlawful  detainer,  an  allegation  in  the  answer  that  the  defendant  was  in  the 
actual  possession  of  land  and  entitled  to  such  possession,  does  not  raise 
the  issue  of  title.  Parks  v.  llarldey,  514. 

21.  Conclusion  of  law.    The  averment  in  an  answer,  that  a  party  is  entitled  to 
the  possession  of  land,  is  a  conclusion  of  law.    Ib. 

22.  Forcible  entry  —  title — gist,  of  nation.     In  the  action  of  forcible  entry  and 
unlawful  detainer,  the  question  of  title  is  an  immaterial  issue;  and  the  gist 
of  the  action  is  the  actual  possession  of  the  premises  by  the  plaintiff,  and 
his  forcible  ejection  from  the  same  by  the  defendant.  Ib. 

23.  Replevin  —  value  of  property.     In  an  action  of  replevin,  the  value  of  property 
must  be  alleged  by  the  party  that  demands  judgment  for  its  value,  if  it 
cannot  be  returned.     Lonitne  v.  Sweeney,  584. 

24.  Filing  amended  ansicer —  discretion.      It  is  not  an  abuse  of  legal  discretion 
in  the  court  below  to  refuse  to  allow  a  defendant  to  file  a  second  amended 
answer,  if  the  affidavits  do  not  show  what  the  defense  is,  and  why  it  was 
not  made  before.     first  National  Hunk  of  Helena  r.  How,  604. 

See  ATTACHMENT ;  PRACTICE,  88,  89  ;PROMISSORY  NOTE,  7. 

PRACTICE. 

I.  Mandamnn — appeal  from  order  on  referee''.'!  report.     No  appeal  lies  from  an 

order  of  the  district  court  setting  aside  the  report  of  a  referee  upon  an  appli- 
cation for  a  writ  of  mandate.  ThotnaM  v.  Smitli,  21. 

'2.  Mandamu* — reference — must  be  determined  hi/  court.  The  district  court 
cannot  refer  an  application  for  a  writ  of  mandate,  but  must  grant  or  deny 
the  same  before  an  appeal  can  be  taken.  Ib. 

3.  Issue*  of  law — waiver  of.     Issues  of  law  should  bo  disposed  of  before  issues 

of  fact  are  tried ;  but  this  right  is  waived  by  a  party  who  goes  to  trial  upon 
the  facts,  without  insisting  upon  a  demurrer,  which  has  been  tiled  in  the 
action.  Marden  v.  \Vlieelock,  49. 

4.  Intermediate  proceedings  reviewed.     On  an  appeal  from  a  judgment,  this  court 

can  review  the  intermediate  proceedings  and  afford  relief.  Ib. 

.">.  Oral  instructions  —  not  error.  It  is  not  error  for  a  judge  of  the  district  court 
to  give  oral  instructions.  Ib. 

C.  Default  —  how  net  aside.  A  default  can  bo  set  aside  without  showing  excus- 
able neglect,  if  the  summons  has  been  defectively  served.  Brown  v.  G.  &S. 
G.  &S.  M.  Co.,  57. 

r.  Default — -hoir  set  axide.  A  default  should  not  be  set  aside,  if  the  service  has 
been  regular,  without  affidavits  of  excusable  neglect  or  inadvertence,  and 
also  of  merits.  Lamb  v.  G.  A  N.  G.  A  S.  M.  Co.,  64. 

8.  Judgment  on  reserved  verdist.     It  is  not  error  to  enter  judgment  upon  a  ver- 

dict which  has  been  reserved  for  consideration,  011  the  motion  of  complain- 
ing party.  Griffith  v.  IlershfieM,  66. 

9.  ffonnuit  — plaintiff  s  motion  to  set  aside.     A  plaint  iff  can  move  to  set  aside  a 

nonsuit,  which  has  been  entered  with  his  consent,  after  it  was  evident  that 
he  could  not  recover  on  account  of  alleged  error  in  the  rulings  of  the  court. 
Conner  v.  McPliee,  73. 

10.  Review  —  matters  not  in  record.     This  court  cannot  review  matters  which 
are  not  presented  in  the  record  of  the  case.  Ib. 

II.  Statement  —  exceptions  —  neir  trial.     An  order  of  the  district  courtdenyiuga 
motion  for  a  new  trial  will  be  sustained,  if  there  is  no  statement  specifying 
errors,  or  bill  of  exceptions.     An/ii -rson  v.  O'Luughlin,  81. 

12.  Motions  under  advisement.     It    is  not  error  for  the  district   court  to  take 
motions  under  advisement  from  one  term  to  another.   Ib. 

13.  Default,  set  aside.     Tin:  setting  aside  of  the  default  in  this  case  was  not  an 
abuse  of  the  discretion  of  the  court   below.     Loeb  v.  Sctnndith,  87. 

14.  Appearance  — waiver  of  summons.     A  party  appears  generally  in  an  action 
and  waives  a  summons,  if  he  mines  into  court,  without   limiting  hi*  object 
in  so  doing.     Kleinsclitnidt  v.  Morse,  UK). 

l.'i.  Appearance  — signing  stipulation.  The  signing  of  a  certain  stipulation  in 
this  case  was  a  general  appearance.  Ib. 

1(>.  ir/i'-.'i  j'i'liiinent  is  not  re  i' if  wed.  This  court  will  not  review  a  judgment 
when  it  appears  from  the  whole  record  that  justice  has  been  done.  Car>i- 
thers  v.  f'-mberlon,  111. 

17.  Neio  trial  — newly  discovered  evidence,  —  affidavits.  A  new  trial  will  not  be 
granted  on  the  ground  of  newly-discovered  evidence,  if  the  affidavits  do 
not  show  what  diligence  waa  used  to  obtain  it,  and  the  evidence  is  cumu- 
lative. Ib. 

VOL  1.  — 93 


738  INDEX. 

18.  Findings  of  referee  —  not  reviewed  without  testimony.    This  court  will  not 
review  the  findings  of  a  referee,  if  the  testimony  on  which  they  are  based 
is  not  made  a  part  of  the  transcript.     Wilson  v.  Davis,  183. 

19.  Jurisdiction  —  this  court  examines  nothing  except  decree  of  court  below.    This 
court  can  only  determine  whether  or  not  the  decree  of  the  court  below 
should  be  affirmed,  and  cannot  now  consider  the  effect  of  the  undertaking 
on  appeal  upon  the  order  of  the  court  below,  for  the  sale  of  property.  Ib. 

20.  Judgment  entered  at  succeeding  term.    Judgment  can  be  entered  on  a  verdict 
at  a  term  of  the  court  succeeding  that  in  which  it  was  found  by  the  jury, 
if  the  clerk  has  failed  to  enter  the  same.     Comanche  Mining  Company  V. 
Rumley,  201. 

21.  Judgment  —  court  can  amend.    The  court  can  amend  a  judgment  at  a  term 
succeeding  that  in  which  it  was  entered,  by  inserting  the  names  of  the 
defendants  that  were  specified  in  the  verdict.  Ib. 

22.  Judgment  against  defendants  individually.    Judgment  can  be  entered  against 
defendants  individually,  who  are  named  and  described  in  the  complaint  as 
a  certain  company,  although  they  are  not  members  of  it,  if  the  jury  finds 
that  they  are  liable  individually.     Ib. 

23.  Objections  not  regarded  without  a  statement.     This  court  will  not  regard 
objections  that  a  verdict  is  against  law  and  evidence,  if  there  is  no  settled 
statement.     Davis  v.  Oermaine,  210. 

24.  Objection  not  considered  without  an  exception.     This  court  will  not  consider 
an  objection  that  oral  instructions  were  given  to  the  jury  contrary  to  the 
statute,  if  no  exception  was  properly  taken  at  the  time.     Ib. 

25.  New  trial — not  granted  if  verdict  has  any  support.     Anew  trial  will  not  be 
granted  if  there  is  some  testimony  to  support  the  verdict,  although  there  is 
a  preponderance  of  evidence  against  it.     Lincoln  v.  Hodgers,  217. 

26.  Default  — judgment  after  appearance.     A  default  cannot  be  entered  against 
a  defendant,  after  he  appears,  but  judgment  can  be  rendered  against  him 
for  want  of  an  answer.     Mason  v.  Germaine,  2(53. 

27.  Intermediate   orders   reviewed.     On  appeal    from   a  judgment,  this  court 
will  review  intermediate  orders  that  affect  the  judgment.  Ib. 

28.  Suits  consolidated.    Suits  cannot  be  consolidated,  unless  the  parties  are  the 
same  and  the  subject-matter  can  be  joined.  Ib. 

29.  Mechanics'1  lien  —  one  trial  —  one  sale.     The  rights  of  all  the  parties  to  an 
action  that  claim  liens  upon  the  same  premises  under  the  act  "  securing  liens 
to  mechanics  and  others,"  must  be  adjudicated  in  one  proceeding,  and  the 
several  liens  of  the  parties  should  be  satisfied  out  of  the  proceeds  of  the 
same  sale  of  the  incumbered  property.    Ib. 

30.  Questions  of  fact  not  considered  without  the  statement.    On  appeal  from  au 
order  refusing  a  new  trial,  questions  of  fact  will  not  be  considered,  unless 
all  the  evidence  is  brought  before  the  court  in  the  statement.  Ib. 

31.  Errors  not  reviewed.    Errors  of  law  that  are  immaterial  or  not  properly 
specified  will  not  be  reviewed.  Ib. 

32.  Stipulation  not  in  the  statement.    The  stipulation  of  attorneys,  that  is  not 
embodied  in  the  statement,  will  be  disregarded  on  appeal.  Ib. 

33.  Presumption  in  absence  of  evidence.    This  court  will  presume,  in  the  absence 
of  the  evidence,  that  the  court  below  found  the  facts  correctly.  Ib. 

34.  Process,  if  court  makes  one  a  defendant.    No  process  is  required  when  the 
court  orders  that  a  person  be  made  a  defendant,  and  all  the  parties  to  the 
action  are  charged  with  notice  thereof.  Ib. 

35.  Probate  judge  cannot  issue  summons — jurisdiction.     A  judge  of  the  probate 
court  has  no  power  to  issue  and  attest  a  summons  under  his  own  hand,  if 
there  is  no  law  providing  for  a  clerk  or  seal  of  the  court,  and  no  jurisdiction 
is  acquired  by  such  a  summons.     Murphy  v.  Ames,  276. 

36.  Special  appearance — jurisdiction.    The  special  appearance  of  a  party  for  the 
purpose  of  moving  to  dismiss  the  action  confers  no  jurisdiction  upon  the 
court.  Ib. 

37.  Appeal  bond  to  supreme  court  of  United  States.    The  bond  on  appeal  from 
this  court  to  the  supreme  court  of  the  United  States  is  the  same  as  that  re- 
quired by  the  laws  of  congress  and  the  rules  of  the  supreme  court  of  the 
United  States  on  appeals  from  the  circuit  court  to  the  said  supreme  court. 
Mason,  v.  Germaine,  279. 

38.  Conditions  of  bon'ls  on  appeal  to  st/iy  execution  of  judgment.     The  execution 
of  a  judgment  for  the  sale  of  property  to  satisfy  mechanics'  liens  is  not 
stayed  on  appeal  to  the  supreme  court  of  the  United  States,  unless  the  bond 
on  such  appeal  is  conditioned  according  to  law,  and  executed  to  the  respond- 
ents, and  sufficient  in  amount  to  secure  the  liens  decreed,  the  costs  of  suit 
the  damages  for  the  delay  and  detention  of  the  property  and  the  costs  and 
interest  ou  the  appeal.  Ib. 


INDEX.  739 

39.  Consideration  of  statement  —  exceptions.    This  court  will  not  consider  a  state- 
ment that  has  not  been  duly  tattled  and  certified,  or  exceptions  that  have 
not  been  duly  presented  and  signed  according  to  the  statute.    King  v.  SuJ- 
livan,  282. 

40.  Review  of  exceptions  to  admission  of  evidence.  An  exception  to  the  admission 
of  evidence  upon  a  cross-examination  will  not  be  examined  if  all  the  evi- 
dence is  not  before  the  court.  Ib. 

41.  Verdict  against  evidence.     A  verdict  will  not  be  set  aside,  as  contrary  to 
evidence,  unless  it  is  clearly  unsupported  by  evidence.     Toombs  v.  Horn- 
buckle,  286. 

12.  Sham  answer — judgment  on  pleadings.  If  the  answer  does  not  raise  a  mate- 
rial issue  it  may  be  struck  out  as  sham,  or  judgment  may  be  rendered  on 
the  pleadings.  Lomme  v.  Kintzing,  21)0. 

43.  Verbal  ttti ^illation.    This  court  will  not  consider  a  verbal  stipulation  between 
the  attorneys  of  the  parties.     Rankin  v.  Campbell,  300. 

44.  Oral  agreements.    The  oral  agreements  of  attorneys  should  be  disregarded, 
although  the  clerk  has  entered  them  in  the  transcript  on  appeal.   Stewart  v. 
Miller,  301. 

45.  Instructions  that  mislead  not  ffive.n.    The  court  will  not  give  an  instruction, 
that  is  correct,  if  it  will  mislead  the  jury.     Boucher  v.  MulverhiU,  .'iOG. 

46.  Agreed  statement  no  part  of  judgment  roll.     An  agreed  statement  of  facts,  on 
which  the  case  was  tried  and  judgment  rendered  in  the  court  below,  forms 
no  part  of  the  record,  and  cannot  be  considered  on  appeal,  unless  it  is  in- 
cluded in  the  statement  on  a  motion  for  a  new  trial,  or  saved  in  a  bill  o» 
exceptions,  or  certified  to  by  the  judge  as  having  been  used  on  the  trial- 
Noteware  v.  Sterns,  311. 

47.  Finding  of  fact  —  admissions.     A  note  "not  submitted  for  the  reason  that 
defendants  conceded  these  facts,"  which  was  written  by  the  judge  at  the 
trial  ill  refusing  to  submit  an  issue  to  the  jury,  is  not  the  finding  of  a  fact 
stated  in  the  issue,  nor  a  record  of  its  admission.     Taylor  v.  Stewart,  316. 

-48.  Manner  of  admittin-g  facts.  The  admission  of  a  fact  during  the  trial  must 
be  made  by  the  party,  or  his  attorney,  in  a  distinct  and  formal  manner  in 
open  court,  and  imports  verity.  Ib. 

49.  Refusal  to  submit  issues.    It  is  error  for  the  court  to  refuse  to  submit  an 
issue  to  the  jury  on  the  ground  that  it  is  an  admitted  fact,  if  there  has  not 
been  a  solemn  admission  of  the  fact.  Ib. 

50.  Exceptions  to  reasons.     Parties  cannot  except  to  the  reasons  given  by  the 
court  for  its  rulings.   Ib. 

51.  Judgment— presumption  in  favor  of.    This  court  will  presume,  if  the  con- 
trary does  not  appear  upon  the  record,  that  the  court  below  found  facts 
sufficient  to  support  the  judgment.     Ming  v.  Truett,  322. 

52.  Judgment  —  conflicting  evidence.    This  court  will  not  reverse  a  judgment,  if 
the  testimony  is  conflicting,  although  the  weight  of  evidence  appears  to  bo 
against  the  finding  of  the  court  below.  Ib. 

53.  Judgment  reversed  for  irrelevant  instructions.     A  judgment  will  be  reversed 
if  the  instructions  of  the  court  below  upon  irrelevant  and  immaterial  issues 
are  erroneous,  and  calculated  to  mislead  the  jury.     Kinna  v.  Horn,  321). 

54.  Review  of  issues  of  lair  in  defective  ansirer.    This  court  will  review  oil  appeal 
an  issue  of  law  raised  by  a  demurrer  to  the  answer,  which  has  been  waived 
by  the  tiling  of  a  replication,  if  the  answer  is  defective  in  matters  of  sub- 
stance which  cannot  be  cured  by  the  verdict,     liulim  v.  Itunphy,  333. 

65.  Continuance  —  diligence.  —  affidavit  ami  facts  considered.  The  refusal  of  the 
court  below  to  grant  a  continuance  will  not  be  reviewed  if  there  has  not 
been  a  gross  abuse  of  discretion.  In  determining  what  diligence  has  been 
used  to  obtain  evidence,  the,  court  must  consider  not  only  the  affidavit  for 
a  cont  inuance,  but  facts  within  its  judicial  knowledge  of  the  condition  of 
the  country  and  means  of  communication.  Hind;  v.  Appolonio,  342. 

56.  Conflicting  t'/'iilenci'.     The  judgment  of  tlie  c-nirt  below  will  not  be  reversed 
if  the  evidence  is  conflicting.      VYni'/.s-  v.  Mr <  'onnicli,  347. 

57.  Tallinn  of  exceptions — -presumption   uf  lime  and   miiinnr.     This  court   will 
presume  that  exceptions  were  taken  at  the  proper  time,  and  in  the  proper 
manner,  if  the  record  shows  that  a  party  "  duly  excepted  "  to  the  refusal 
of  the  court  below  to  give  instructions.     Simonton  v.  Kelly,  363. 

58.  tjenei'nl  exception  not  regarded.     A  general  exception  which  does  not  point 
out  the  particular  error  complained  of  will   be  disregarded  if  a  part  of  tht* 
instructions  is  correct,   Ib. 

59  Statement  — specific  errors.  \  statement  on  a  motion  for  a  new  trial  is  suffi- 
cient if  it  points  out,  in  an  intelligent  manner  the  specific  errors  relied  on 
by  the  appellant  .  I'irnn'i/  v.  I  Irrslificl'l.  367. 


740  INDEX. 

00.  Instructions  —  issues.  The  court  should  not  give  instructions  which  wtt 
cause  the  jury  to  consider  issues  on  which  no  evidence  has  been  introduced. 
Campbell  v.  Metcalf,  379. 

61.  Judgment  if  demurrer  is  illegally  filed.  A  party  who  withdraws  his  demur- 
rer to  a  verified  complaint,  and  obtains  leave  to  file  an  auswer  thereto  at  a 
certain  time,  cannot  then  file  another  demurrer;  but  if  another  demurrei 
is  filed,  the  court  may  disregard  it  and  enter  judgment  for  the  want  of  an 
answer.  McFarland  v.  Cutter,  383. 

02.  Fiiidings — no  exceptions  to  interest.  This  court  will  not  review  the  compu- 
tation of  interest  in  the  judgment,  if  no  exceptions  were  properly  taken 
to  the  findings  of  the  court  below.  Ib. 

63.  Dismissal  of  appeal  —  motion  to  re-instate.    An  appeal  that  has  been  dismissed 
will  not  be  re- instated  on  the  motion  of  appellant,  supported  by  his  affida- 
vit, showing  that  his  neglect  to  perfect  the  appeal  was  caused  by  the  verbal 
statements  or  agreement  of  the  respondents.     Orr  v.  Harding,  387. 

64.  Motion  Jor  rehearing  —  equit;/ —  supersedeas.     The  motion  for  a  rehearing 
of  an  equity  case  by  this  court  does  not  operate  as  a  supersedeas,  and  the 
court  below  can  enter  a  decree  in  accordance  with  the  remittitur  and  man- 
date of  this  court,  while  the  motion  is  pending.    Columbia  Ens.  Co.  v.  Hotter, 
429. 

65.  Stay  of  judgment — motion.     A  motion  for  a  new  trial  in  an  action  at  law 
does  not  stay  the  execution  of  the  judgment.  Ib. 

66.  Remittitur  recalled  or  stayed  by  justices.     The  justices  of  this  court,  on  a 
proper  application  in  vacation  or  term  time,  can  recall  or  stay  a  remittitur 
and  mandate  chat  have  been  erroneously  issued  out  of  this  court.  Ib. 

67.  Granting  of  rehearing.    A  rehearing  in  an  equity  case  will  not  be  granted 
after  the  court  below  has  entered  the  decree  of  this  court  according  to  its 
mandate  and  remittitur.  Ib. 

OS.  .Rehearing — reversal  of  decision.  On  a  motion  for  a  reheariug,  this  court 
will  rarely,  if  ever,  reverse  its  first  decision,  unless  it  has  overlooked  some 
decisive  question,  or  the  decision  conflicts  with  a  statute  or  controlling 
decision.  Ib. 

09.  Finding  by  the  jury  set  aside  —  services.  A  finding  by  the  jury,  that  a  part j 
has  performed  services  for  one  year,  under  a  contract  requiring  him  to  super- 
intend mines  in  this  Territory,  will  be  set  aside,  if  the  evidence  shows  that 
he  left  the  Territory  before  the  year  expired.  Isaacs  v.  McAndrew,  437. 

70.  Withdrawal  of  counter-claim.      It  is  not  error  for  the  court  to  refuse  to 
allow  a  party  to  withdraw  his  counter-claim,  after  the  testimony  has  been 
closed  and  while  the  court  is  instructing  the  jury,  unless  manifest  injustice 
would  result  to  the  rights  of  the  parties.  Ib. 

71.  Verdict  —  evidence.    The  verdict  of  a  jury  will  not  be  disturbed  if  there  is 
competent  evidence  to  support  it.     Davis  v.  Blume,  463. 

72.  Nonsuit  —  review  of  evidence.     In  reviewing  the  ruling  of  the  court  below  in 
granting  a  nonsuit,  this  court  will  consider  every  fact  as  proven  which  the 
evidence  tended  to  prove.     Herbert  v.  King,  475. 

73.  Grounds  for  nonsuit.     A  nonsuit  should  be  granted  if  there  is  no  proof  to 
support  a  material  averment  of  the  complaint.  Ib. 

74.  Dismissal  of  appeal  —  motion   to   perfect  appeal.     A  motion  to  perfect  an 
appeal  from  the  probate  to  the  district  court,  which  was  not  supported  by 
affidavits,  and  was  submitted  after  the  appeal  had  been  dismissed  and  a 
final  disposition  of  the  case  had  been  made,  was  properly  overruled  by  the 
court.    McMullen  v.  Armstrong,  486. 

75.  Reason*  of  court.    A  correct  decision  will  not  be  reversed,  although  the  court 
erred  in  its  reasons  for  making  the  same.  Ib. 

7G.  Presumption  in  favor  of  riding  of  court  below.  If  the  record  does  not  contain 
the  facts,  this  court  will  presume  that  a  motion  to  dismiss  an  appeal  was 
properly  granted  by  the  court  below.  Ib. 

77.  Statement  on  inol ion  for  new  trial  —  particular  errors.     Under  section  195  of 
the  Civil  Practice  Act,  the  statement  on  the  motion  for  a  new  trial  must 
specify  the  particulars  in  which  the  evidence  is  insufficient,  and  a  specifi- 
cation that  ''the  evidence  in  this  case  does  not  justify  the  verdict,"  is  too 
general  and  uncertain  and  will  not  be  reviewed  by  this  court.     Qriswold  v. 
Boley,  545. 

78.  Presumption— new  trial — notice  —  specifications.     In  the  absence  of    any 
objection  this  court  will  presume  that  a  notice  of  the  motion  for  a  new 
trial  was  given,  although  it  does  not  appear  in  the  record,  and  that  the  speci- 
fications of  this  notice  are  contained  in  the  motion  for  a  new  trial.  Ib. 

I'D.  Statement  —  motion  for  new  trial.  The  specifications  of  error  form  a  part  of 
the  statement,  but  they  arc  separate  and  distinct  from  the  motion  for  a  new 
trial.  Ib. 


INDEX.  741 

80.  Consideration  of  exceptions.    This  court  will  not  consider  exceptions  that 
were  not  taken  at  the  proper  time  and  duly  served.  Ib. 

81.  Exceptions  —  instructions.    Exceptions  to  the  charge  of  the  court  must  be 
made  to  a  specified  portion  thereof,  before  the  case  is  finally  submitted  to 
the  jury.  Ib. 

82.  Verdict — conflicting  evidence  —  prejudice.     A  verdict  will  not  be  disturbed 
that  is  fairly  sustained  by  any  testimony,  although  the  weight  of  evidence 
is  against  it,  unless  it  appears  to  be  the  result  of  passion,  prejudice  or  fraud. 
Ib. 

83  Exceptions  to  proof.  Objections  to  the  proof  of  special  damages  cannot  be 
made  iu  this  court  for  the  first  time,  if  no  exceptions  were  taken  to  the  same 
at  the  trial  in  the  court  below.  Ib. 

84.  Order  of  proof.    The  court  can  determine  the  order  in  which  the  proof  shall 
be  introduced.  Ib. 

85.  Demurrer  —  waiver  of  service.    The  filing  of  a  general  demurrer  to  a  bill  in 
equity  is  a  waiver  of  any  irregularity  in  the  service  of  the  subpoena.    Sand- 
ers v.  Farwell,  599. 

86.  Verdict  —  conflicting  evidence.     The  verdict  of  a  jury  will  not  be  disturbed 
if  there  is  a  conflict  in  the  evidence  upon  the  material  issues  in  the  case.  Ib. 

87.  New  trial — irregularities.     A  new  trial  will  not  be  granted  on  the  ground 
of  irregularities  in  the  conduct  of  a  party  and  his  attorney  during  the  trial, 
if  it  does  not  appear  that  the  verdict  was  affected  by  the  irregularities. 
Kinnav.  Horn,  597. 

88.  Amendments  to  pleadings.     Courts,  in  their  discretion,  can  allow  amend- 
ments to  a  complaint  before  the  case  is  submitted  to  a  jury,  to  make  the 
allegations  correspond  with  the  proof.    Wormall  v.  Reins,  027. 

89.  Amendments  to  allegations  not,  denied  in  answer.     In  this  action,  to  recover 
damages  for  mal-practice  by  a  physician,  the  court  did  not  abuse  its  dis- 
cretion in  allowing  the  plaintiff  to  amend  the  complaint,  after  the  testimony 
had  been  closed,  by  striking  out  the  words  "fractured"  and  "broken, 
although  the  answer  did    not  deny  the  allegation  of  the  complaint,  that 
the  elbow  and  arm  of  plaintiff  were  "dislocated,    put    out  of   joint,  dis- 
rupted, broken,  fractured,  wounded  and  bruised."  Ib. 

90.  Continuance   after  amendments  daring  trial.     The   court  did  not  abuse  its 
discretion  in  refusing  a  continuance;,  after  the  plaintiff  had  been  permitted 
to  make  an  amendment  to  the  complaint  during  the  trial,    which  did  not 
present  a  new  material  issue.  Ib. 

91.  Assignment  of  errors.     This  court    will    not    i-eview  errors   which  do  not 
point  out  wherein  the  evidence  is  insufficient  to  support  the  findings  of  fact. 
Thorp  v.  Freed,  (551. 

92.  Opinion  —  findings.    The  opinion  of  the]chancellor  in  an  equitable  action  is 
not  a  finding  of  facts.  Ib. 

93  Reasons  for  judgment.   A  cause  will  not  be  reversed  because  the  court  ren- 
dered its  judgment  for  erroneous  reasons.  Ib. 

94  Verdii't — judgment  mine  pro  tune.     After  a  verdict  has  been  rendered  and 
the  clerk  has  failed  to  enter  judgment  thereon  at  the  proper  term,  the 
court  can  enter  a  judgment  num:  pro   tum-  at  an}'  succeeding  term,  if  the 
rights  of  third  parties  are  not  affected,    llarveij  v.  W  hitlatcket  ai.,  713. 

95.  Oral  notice  of  appeal.  Section  370  of  the  civil  practice  act  requires  a  writ- 
ten notice  of  appeal,  and  an  oral  notice;  given  in  open  court  is  insufficient. 
Cornell  v.  Latta.  714. 

See  DISMISSAL,  OF  ACTION;    EXCMTJ'IOXS;  GAKXISHKK;  GENKUAL.  VERDICT; 
PA  HOI.  COXTHATT;  KKHKAHING  ;  HKIM.EVIX. 

PRINCIPAL  AND  AGKXT. 

1.  Maker  of  promissory  note-  proof  of  niniici/ — intention  of  parties.  In  an 
action  against,  a  person  who  signed  a  promissory  note,  "  Jas.  Stuart,  Gen. 
Mang.  &  Supt.  St.  L.  &M.  M.  Co.,"  the  defendants  personal  liability  will 
not  be  presumed;  and  he  can  introduce  evidence  showing  that  he  made  the 
note  for  the  mining  company,  of  which  he  was  the  agent,  and  that  it  was 
the  intention  of  all  the  parties  that  the  company  should  pay  the  note,  and 
that  he  was  not  to  be  held  liable  thereon.  <,<  rber  \.  Stuart.  172. 

2  Fraud  of  agent.  The  principal  is  liable  for  the  fraud  that  has  been  perpe- 
trated by  his  agent,  who  was  acting  within  the  .scope  of  his  authority. 
Herbert,  v.  King,  475. 

9.  Authority  of  superintendent  of  ajlnnu  .  Courts  will  not  enlarge  the  authority 
of  an  agent,  and  the  acts  of  a  superintendent  of  a  flume  in  constructing, 
repairing  or  superintending  the  same,  are  binding  upon  the  principal;  but 


742  INDEX. 

his  acts  and  declarations  upon  matters  that  are  foreign  to  the  flume  cannot 
affect  his  principal.  Ib. 

PROBATE  JUDGE. 

1.  Powers  under  town-site  act.    The  law  which  confers  upon  a  probate  judge  the 

power  to  enter  public  lauds  for  town  sites  and  award  town  lots  to  the  citi- 
zens, does  not  grant  him  any  judicial  powers,  but  prescribes  his  duties, 
which  are  ministerial.  Ming  v.Truett,  322. 

2.  Compensation  as  attorney  in  his  court.    A  probate  judge  can  practice  as  an 

attorney  in  hia  court,  and  is  entitled  to  receive  compensation  for  making 
applications  for  the  entry  of  town  lots  and  taking  the  affidavits  to  them  at 
the  request  of  his  employer.  Ib. 

See  PKACTICE,  36. 

PROMISE. 
See  PLEADING,  8. 

PROMISSORY  NOTE. 

1.  Notice  of  non-payment  not  waived  by  presence  of  indorser.    The  presence  of 

one  of  the  indorsers  of  a  note,  when  the  holder  presents  it  to  the  maker  at 
maturity  for  payment,  does  not  waive  a  regular  notice  of  its  non-payment 
to  the  indorsers.  Grant  v.  Spencer,  136. 

2.  Suit  is  a  demand.  A  promissory  note  which  is  payable  "on  demand,"  requires 

no  other  or  previous  demand  than  the  commencement  of  a  suit  thereon. 
McFarland  \.  Cutter,  383. 

3.  Merger.    A  promissory  note  is  not  merged  in  an  agreement  which  does  not 

expressly  defeat  a  right  of  action  thereon.     Creightonv.  Vanderlip,  400. 

4  Consideration — fraud  —  defense.  Fraud  that  impeaches  the  consideration 
of  a  promissory  note  constitutes  a  defense  to  an  action  at  law  on  the  note. 
First  National  Bank  of  Helena  v.  How,  604. 

6.  Fraud  of  maker  and  payee  —  vendor  and  vendee — defense.  A  party  who 
buys  and  receives  from  the  possessor  quartz-mill  machinery,  the  title  to 
which  is  in  litigation,  and  makes  his  promissory  note  in  payment  of  the 
same,  commits  a  fraud  on  the  vendor  by  delivering  the  possession  of  the 
property  and  executing  a  conve3rance  of  his  right  thereto  to  another  claim- 
ing the  same,  upon  a  demand  without  any  legal  compulsion,  and  cannot 
afterward  plead  as  a  defense,  in  an  action  brought  on  the  note,  the  fraudulent 
conduct  of  the  vendor  in  selling  the  property.  Ib. 

6.  Failure  of  consideration  —  delivery  of  property.    In  an  action  to  recover  a 

promissory  note,  the  maker  does  not  show  a  failure  of  consideration  by  alleg- 
ing that  the  payee  had  no  title  to  the  property,  in  payment  of  which  it  was 
made,  if  it  appears  that  the  maker  had  delivered  to  a  claimant,  without  any 
legal  necessity,  the  property  which  he  had  bought  and  received  from  the 
payee.  Ib. 

7.  Pleading  —  allegation  of  fraud.     In  an  action  on  a  promissory  note  the  alle- 

gation that  a  suit  was  corruptly  and  fraudulently  dismissed,  without  setting 
forth  the  facts  constituting  the  fraud,  is  immaterial.  Ib. 

8.  Interest  until  paid.     A  promissory  note,  in  which  the  maker  agrees  to  pay  a 

certain  sum,  "on  or  before"  a  certain  day,  "with  interest  at  the  rate  of 
three  per  cent  per  month  until  paid,"  does  not  provide  for  the  rate  ol 
interest  after  its  maturity  on  that  day,  and  the  holder  can  then  collect 
under  the  statute,  interest  at  the  rate  of  ten  per  centum  per  annum.  Col- 
lier v.  Field,  612. 

See  CONTRACT  TO  PAY  GOLD  DUST;  ESTOPPEL;  INTEREST,  9;  PLEADING,  16 
PRINCIPAL  AND  AGENT. 

PROTEST. 
See  BANK  CHECK. 

PURCHASE-MONEY. 
See  AGREEMENT  FOR  BUYING  LA.ND. 


INDEX.  748 

PURCHASE. 
3ee  CHATTEL  MORTGAGE,  1. 

QUARTZ-CLAIM. 

Record — number  of  feet.  The  record  of  a  quartz-claim,  which  doea  not  specify 
the  number  of  feet  claimed  by  the  pre-emptor,  in  admissible  in  evidence  in 
this  case.  The  number  of  feet  need  not  be  specified  in  the  record  of  the 
claim.  Conner  v.  McPhee,  73. 

QUARTZ  LODES. 
See  DESCENT. 

REAL  ESTATE. 
See  AGREEMENT  FOB  BUYING  LAND. 

RECEIVER. 

1.  Pay  taxed  as  costs.     A  receiver  of  property  in  controversy  in  an  action  can- 

not recover  judgment  for  his  services  against  sill  the  parties,  by  a  motion  in 
the  original  suit.  He  is  an  officer  of  the  court,  and  his  compensation  should 
be  allowed  out  of  the  property  in  his  hands,  or  taxed  as  costs,  llutclunson 
v.  Hampton,  !W. 

2.  No  appeal  from  his  appointment.     No  appeal  lies  from  an  erder  of  the  district 

court  for  the  appointment  of  a  receiver.     \Vilvon  v.  Davis,  98. 

REHEARING. 

Rule  of  court  —  terms  of  continuance.  A  party  can  make  a  motion  for  a 
rehearing  under  a  rule  of  this  court.  It  is  not  a  right  given  by  statute  and 
this  court  can  prescribe  the  terms  on  which  a  continuance  of  the  argument 
on  the  motion  is  granted.  Columbia  Mining  Co.  v.  Holter,  429. 

See  PRACTICE,  64,  67,  68. 

RELEA8K. 

1.  I  Consideration — seal.     A  release  that  is  executed  fora  consideration  and  does 

not  affect  real  estate,  is  valid  without  a  seal.     Collier  v.  Field,  612. 

2.  Judfiment —  mortgage  —  release  of  one  nhliiinr.  Tho  written  release  for  a  valua- 

ble consideration  of  one  of  the  joint  and  several  makers  of  a  promissory 
note  from  all  liability  on  the  judgment  entered  in  the  district  court  thereon, 
and  the  mortgage  securing  the  payment  of  the  note,  satisfies  the  judgment 
and  releases  all  the  judgment  debtors  and  mortgagors.  Ib. 

8.  Repugnant  proviso  void.  The  proviso  in  a  release  of  one  judgment  debtor, 
which  states  that  the  liability  of  the  other  judgment  debtors  shall  not  be 
affected  thereby,  is  repugnant  to  the  release  and  void.  Ib. 

REMEDY. 

Undertaking — judgment.  A  creditor  can  pursue  one  or  both  the  remedies  by  p. 
suit  on  the  undertaking  or  an  execution  on  the  judgineuut.  Billiard  v. 
Gillette,  509. 

RENT. 
See  DAMAGES,  2;  LANDLORD  AND  TENANT. 

REPEAL  OF  STATUTES. 
See  STATUTORY  CONSTRUCTIONS,  15,  23 

REPLEVIN. 

1.  Return  of  property  after  verdict.  A  judgment  for  costs  and  the  return  of  the 
property  follow  a  general  verdict  for  defendant  in  a  replevin  suit.  Ander 
son  v.  (J'Laughlin,  81. 


744  INDEX. 

2.  Measure  of  damages  —  interest.  In  aa  action  In  the  nature  of  replevin,  to 
recover  certain  mules  and  harness,  a  party  is  entitled  to  the  property,  and 
the  value  of  its  use,  from  the  time  he  was  deprived  of  it  to  the  day  of  trial. 
Legal  interest  on  their  value,  during  the  period  of  detention,  is  not  the 
measure  of  damages.  Morgan  v.  Reynolds,  163. 

8.  Property  returned  if  action  fa  dismissed.  A  judgment  for  costs  and  the  return 
of  property  is  properly  rendered  against  a  party  who  dismisses  his  action 
for  the  recovery  of  the  possession  of  the  property  after  he  has  obtained  the 
same  by  means  of  the  process  of  the  court  iu  the  action .  Dahler  v.  Steele 
206. 

4.  Demand.    No  demand  for  a  return  of  property,  which  has  been  unlawfully 
taken,  is  necessary  before  the  commencement  of  a  suit  therefor.       Oris- 
wold  v.  Boley,  545. 

5.  Undertaking — sureties  —  return  of  property.    The  sureties  in  an  undertak- 
ing iu  replevin  are  released  from  their  obligation  to  return  the  property, 
if  it  is  taken  by  due  process  of  law,  without  their  fault,  and  held  or  sold, 
so  that  a  return  is  rendered  impossible.     Culdwell  v.  Gans,  570. 

6.  Possess  ion  of  property  —  attachment.  The  proceedings  in  replevin  give  a  right 
to  the  temporary  possession  of  the  property  without  any  title,  until  the 
right  of  possession  is  tried  and  determined,  and  do  not  impair  the  lien  of  an 
attachment  that  has  been  levied  on  the  property.  Ib. 

7.  Obligation  of  sureties.     The  sureties  in  an  undertaking  in  replevin  must 
return  the  property  after  a  judgment  has  been  rendered  for  such  return, 
if  it  is  iu  their  power  so  to  do ;  and  they  are  entitled  to  the  property,  if 
they  pay  the  judgment  in  the  suit  in  which  the  property  has  been  at- 
tached. Ib. 

8.  Compliance  with—  condition.    The  condition  of  a  replevin  undertaking,  to 
return  the  property,   is  complied  with,  if  the  sheriff  acquires  possession 
of  the  same  under  a  subsequent  attachment  or  execution.  Ib. 

9.  Judgment  for  return  of  property  —  value.    In  an  action  of  replevin,  a  judg- 
ment for  the  return  of  property,  which  does  not  fix  its  value,  if  a  return 
cannot  be  had,  is  irregular,  but  not  illegal  or  void.     Lomme  v.  Sweeney,  584. 

10.  Liability  of  sureties  —  damages.  The  sureties  in  an  undertaking  for  the  claim 
and  delivery  of  property,  that  is  in  the  hands  of  a  sheriff  under  the  writ 
of  attachment,  are  liable  for  the  damages  which  may  be  sustained  by  the 
officer  and  the  attaching  creditor,  by  a  failure  to  return  the  property.  Ib. 

11.  Parties  —  action  for  damages  bi/  creditor.    An  action  for  damages  against  the 
sureties  on  a  replevin  undertaking,  which  has  been  executed  and  delivered 
to  the  sheriff,  can  be  maintained  by  and  in  the  name  of  the  creditor  that 
caused  the  officer  to  attach  the  propei'ty  that  has  been  replevied.  Ib. 

12.  Sureties  —  statute — judgment.     The  liability  of  the  sureties  in   a  replevin 
undertaking  cannot  be  extended  by  statute,  or  the  judgment  entered  in 
the  action.  Ib. 

13.  Contract  of  sureties.      The  sureties  in  a  statutory  undertaking,   for    the 
claim  and  delivery  of   property,  contract  that  the  principal  will  return 
the  property,  and  that  they  will  pay  any  judgment  that  may  be  recovered 
against  the  principal.  Ib. 

14.  Evidence  of  ownership.  The  defendants,  in  an  action  on  a  replevin  undertak- 
ing, cannot  show  that  the  title  is  in  a  stranger.  Ib. 

15.  Sureties — writ  retomo  habendo.     The  sureties   in  a  replevin   undertaking 
can  be  sued,  if  the  property  is  not  returned  after  a  judgment  therefor, 
before  a  writ  retorno  kabendo  has  been  issued  and  returned  unsatisfied.  Ib. 

16.  Demand.    An  action  can  be  brought  against  the  sureties  in  a  replevin  under- 
taking, before  a  demand  has  been  made  for  a  return  of  the  property.  Ib. 

See  EVIDENCE,  8 ;  PLEADING,  23. 

REPUTATION". 
See  EVIDENCE,  71. 

RESCISSION  OF  CONTRACT. 
See  AGREEMENT  FOR  BUYING  LAND. 

RES  GEST.E 
See  CRIMINAL  LAW,  2. 


INDEX.  Tiff 

RIPARIAN  BIGHTS. 
See  WATER  RIGHTS. 

SALE. 

See  Fit  A  i;  i  >i  •  LI:NT  SALE. 

SEAL. 
See  MORTGAGE,  2 ;  RELEAM. 

SERVICES. 
See  CONTRACT,  1-4. 

SHAM  ANSWER. 

See  PRACTICE,  42. 

SHERIFF. 

Partte*  —  liability.  The  acts  of  the  sheriff  in  taking  property  are  the  not*  of 
the  parties  to  the  suit,  and  the  officer  and  parties  are  liable  therefor. 
Qrtswold  v.  Boley,  645. 

SHERIFF'S  RETURN. 

1.  Cannot  be  quashed  by  a  motion.    The  sheriff's  return  on  an  execution  cannot 

be  quashed  by  a  motion  and  evidence  of  its  illegality  or  falsehood.  Mc- 
Gregor v.  Wells,  Fargo  ,fc  Co.,  142. 

2.  Remedy  of  injured  party.    The  party  who  is  injured  by  a  sheriff's  return 

upon  an  execution,  can  maintain  an  action  for  damages  against  the  officer. 
Ib. 

8.  Annulled  by  court  —  payment  of  execution.  The  court  can  annul  the  sheriff's 
return  upon  an  execution,  which  shows  that  he  has  applied  one  execution 
in  payment  of  another  in  his  hands.  Ib. 

STAMPS. 

1.  On  yold  dust  contracts.    A  writing  stating  that  a  certain  quantity  of  gold  dust 

is  due,  without  specifying  its  value,  and  a  mortgage  executed  to  secure  the 
delivery  of  the  same,  are  not  "instruments  for  the  payment  of  money," 
under  the  act  of  congress  requiring  stamps  to  be  allixed  to  them.  Griffith  v. 
Hertthjield,  G6. 

2.  On  mortgage  and  note.     It  is  legal  to  affix  stamps  to  a  note,  or  the  mortgage 

executed  to  secure  its  payment,  or  both,  if  the  amount  on  both  is  suffi- 
cient. Ib. 

See  COUNTY  RECORDER. 

STATUTE. 
A  statute  cannot  be  varied  by  the  agreement  of  parties.     Davis  v.  lltindt;t,  499 

STATUTE  OF  FRAUDS. 

Verbal  promise  to  pay  deb!,  of  anotliei:  The  verbal  promise  of  a  party,  who  haa 
a  claim  against  a  ditch,  to  pay  the  lien  of  another  against  the  ditch,  is  not 
within  the  statute  of  frauds,  and  may  be  enforced  in  law,  if  the  main  pur- 
pose of  the  promise  is  to  protect  the  private  interests  of  the  promisor,  and 
the  other  party,  in  consequence  of  this  promise,  gives  uphis  lien  on  the  prop- 
erty and  fails  to  sue  and  collect  his  debt.  (,'«ro//urx  v.  Connnlh/.  |;>3. 

STATUTE  OF  LIMITATIONS. 

Malpractice. — action  against  physician  for  d<i>nttu>-s.  In  an  action  to  recover 
damages  for  the  unskillful  treatment  of  a  fractured  arm,  the  gist  of  tho 
action  is  the  negligence  of  the  physician,  and  the  statute  of  limitations 
begins  to  run  from  the  time  of  the  alleged  negligence.  Coady  v.  Heins.  424. 

See  COURTS;  STATUTORY  CONSTRUCTION,  20,  21. 
VOL.  I.  — 94 


746  INDEX. 

STATUTORY  CONSTRUCTION. 

1.  Retroactive  effect.    Section  6  of  the  act  of  congress,  amending  the  organic  act 

of  this  Territory,  approved  March  2,  1867,  did  not  have  a  retroactive  effect 
and  give  full  force  to  a  law  from  the  date  of  its  first  enactment,  which  had 
been  annulled  by  congress  and  re-enacted  by  a  subsequent  legislature  of 
Montana.  Carpenter  v.  Rodgers,  91. 

2.  Meaning  of  said  section.    In  passing  said  section  6,  congress  gave  to  subse- 

quent territorial  legislatures  the  right  to  re-euact  certain  laws  that  had  beet 
annulled  by  congress.  Ib. 

8.  Historical  facts  referred  to.  This  court  can  refer  to  the  history  of  the  Ter- 
ritory to  ascertain  the  proper  construction  of  a  statute  which  is  ambig- 
uous. Ib. 

4.  Repugnant  proviso  void.  A  proviso  which  is  inconsistent  with  any  reasonable 
intention  of  the  assembly  which  passed  it,  and  repugnant  to  the  body  of  the 
act,  is  void.  Ib. 

6.  Act  relating  to  groundsfor  refusing  new  trial  is  directory.  Section  196  of  the 
civil  practice  act,  requiring  the  court  to  state  in  writing  the  grounds  on 
which  a  new  trial  is  refused,  is  directory.  The  failure  of  the  court  to  state 
such  grounds  in  this  case  did  not  injure  the  appellants.  Grant  v.  Spencer, 
136. 

6.  Statute  regulating  irrigation  —  award  of  commissioners  void.    The  powers  con- 

ferred on  commissioners  to  apportion  water,  under  the  fourth  section  of  the 
act  "to  protect  and  regulate  the  irrigation  of  laud  in  Montana  Territory," 
approved  January  12,  1865,  are  judicial,  and  cannot  be  granted  by  the  legis- 
lative assembly.  The  award  of  such  commissioners  is  void.  TJiorp  v.  Wool- 
man,  168. 

7.  Statute  regulating  irrigation  —  doctrine  of  appropriation.    The  act  regulating 

irrigation  in  this  Territory  recognizes  the  doctrine  of  the  appropriation 
of  water  for  irrigation,  but  limits  the  right  and  quantity  to  certain  per- 
sons. Ib. 

8.  Statute  prefers  liens  of  mechanics.    The  act  passed  December  30, 1864,  "  secur- 

ing liens  to  mechanics  and  others,"  gives  preference  to  the  liens  of  mechan- 
ics and  material  men  over  any  incumbrance  made  after  the  building  is 
commenced.  WARREN,  C.  J.,  dissenting.  Mason  v.  Germaine,  263. 

9.  Act  of  congress  relating  to  rights  of  ditch  owners  construed, — water-rights. 

Under  section  9  of  the  act  of  Congress,  entitled  "An  act  granting  the  right 
of  way  to  ditch  and  canal  owners  over  the  public  lands,  and  for  other  pur- 
poses,'1 approved  .I'ulx  :.(>,  ISCuJ.  a  person  has  no  right  to  go  upon  the  mining 
ground  of  another  and  roust  ruct  his  ditch  through  the  same,  without  the 
consent  of  the  owm-T,  unless  lie  shows  a  necessity  therefor,  and  pays  the 
damages  resulting  therefrom.  It  was  the  intention  of  congress  to  give  the 
owners  of  water-rights  the  right  of  way  over  the  public  domain,  for  the 
construction  of  ditches,  to  make  the  water  available  for  use.  Xoteware  v. 
Stems,  311. 

10.  Law  relating  to  mechanics''    lien  —  remedial.      The  act   "securing  liens  to 
mechanics  and  others  "  should  be  strictly  followed,  but  it  is  a  remedial 
statute  and  should  be  liberally  construed. "  Black  v.  Appolonio,  342. 

11.  "Just  and  true  account.''1     Under  the  act  "  securing  liens  to  mechanics  and 
others,"  the  words,  "a  just  and  true  account,"  do  not  mean  the  exact 
account  for  which  judgment  may  be  entered,  but  an  honest  statement  of 
the  account  by  the  party  claiming  the  lien.  Ib. 

12.  Mechanics'    lien  —  implied   contract.     Under    the    act    "securing    liens    to 
mechanics  and  others  "  a  mechanic  is  entitled  to  his  lien  for  the  payment 
of  his  services,  which  have  been  performed  under  an  implied  contract.  Ib. 

IH.  Act  relating  to  interest  on  conuti/  H-ufmntx  —  indorsement  of.  Under  the 
statute  entitled  "An  act  authorizing  county  commissioners  to  pay  interest 
on  county  warrants,"  approved  February  8,  1865,  the  duty  of  making  the 
indorsement,  "not  paid  for  want  of  funds  in  the  treasury,"  on  the  war- 
rant, devolves  on  the  county  treasurer ;  and  the  court,  by  a  writ  of  mandate, 
can  compel  him  to  make  this  indorsement  at  the  time  the  party  was  enti- 
tled thereto.  Territory  ex  rel.  Lanjei/  v.  Gilbert,  371. 

14.  "  ATo/  paid  for  u>ant  of  funds.  It  was  the  intention  of  the  legislature  thai 
the  indorsement  "not  paid  for  want  of  funds  in  the  treasury,"  should  show 
that  the  county  warrant  had  been  presented  for  payment  at  a  certain  time, 
and  that  payment  had  been  refused  for  want  of  funds  in  the  treasury ;  it 
was  not  intended  to  be  an  arbitrary  condition  provided  for  the  sole  purpose 
of  making  county  warrants  draw  interest.  Ib. 

It-  Act  relating  to  payment  of  county  warrants  —  act  repealed.  The  act  entitled 
"An  act  defining  the  duties  of  county  treasurers,  and  the  payment  ot 


INDEX.  747 

county  warrants,''  approved  November  19,  1867.  provides  for  the  preserva- 
tion of  the  order  in  which  county  warrants  have  been  presented  for  pay- 
ment, and  repeals  the  act  entitled  "An  act  authorizing  county  commission- 
ers to  pay  interest  on  county  warrants,"  approved  Februarys,  1865,  which 
provides  for  a  different  means  of  preserving  such  order.  Ib. 

16.  Mining  act  of  congress  —  rights  of  miners.    Section  9  of  the  general  mining 
act  of  the  United  States,  approved  July  26,  1806,  grants  to  the  proper  per- 
sons an  easement  upon  the  mineral  lands  of  the  public  domain,  which  they 
may  appropriate  according  to  the  local  rules  and  customs  of  miners  in  the 
mining  district  in  which  the  same  mav  be  situated,  and  thereby  legalizes  the 
mining  upon  the  public  lands  of  the  (Jiiited  States  for  the  precious  metals. 
Robertson  v.  Smith,  410. 

17.  Grants  to  miners— implied  right.    The  grants  made  by  congress  in  the  min- 
ing law  of  J  uly  26,  186ti,  should  be  liberally  construed  in  favor  of  the  grantee ; 
and  the  grant  of  the  right  to  occupy  and  explore  the  mineral  lands  of  the 
United  States  carries  with   it   the  implied  right  to  extract  the  precious 
metals  found  by  the  occupant  and  explorer.  Ib. 

18.  Grant  hi/  congress  for  highways  —  compensation.     Section  eight  of  the  general 
mining  act  of  congress  of  July  26,  1866,  grants  to  the  public  a  right  of  way 
for  the  construction  of  highways  over  public  lands;,  which  have  not  been 
otherwise  appropriated ;  but  neither  the  county  commissioners  nor  the  ter- 
ritorial   legislature  can    take  land  for  highways   in    which   miners  have 
acquired  vested  rights,  without  giving  a  just  compensation  for  damages  to 
those  rights.  Ib. 

19.  Ilesered  ritjhts  hi/  congress —  miners'  customs.     The  clause  in  section  1  of  the 
general  mining  ace  of  July  26,  1866,  "subject  to  such  regulations  as  may 
be  prescribed  by  law,"  is  a  reservation  of  the  right  by  congress  to  regulate 
by  legal  enactments  the  manner  and  conditions  under  which  claims  must 
be  worked  by  miners.     The  clause  in  the  same  section,  "subject  also  to  the 
local  customs  or  rules  of  miners  in  the  several  mining  districts,"  relates  to 
the  rules,  customs  and  regulations  of  miners  regarding  the  location,  user 
and  forfeiture  of  mining  claims.  Ib. 

'-'».  Statute  of  liinitai.inns  —  time  fitlarge.il.  The  act  of  the  sixth  legislature 
amending  "An  act  concerning  limitations,"  approved  February  51.  1865, 
governs  all  cases  in  which  the  right  of  action  existed  at  the  time  of  its  pas- 
sage under  the  lirst  act,  approved  February  9,  1865.  and  enlarged  the  time 
within  which  the  plaintiff  could  enforce  her  remedy  from  February  28, 1870, 
when  she  was  barred  by  the  first  act,  to  Februaiy  28,  187o.  Coady  \. 
Reins,  424. 

21.  Stature,  of  limitation*  —  i-<tliditi/  of.    The  act  of  the  sixth  legislature  amend- 
ing the  "Act  concerning  limitations,"  approved  February  9,  1865,  relates  to 
to  the   remedy,  is  prospective  in  its  effects  and  does  not  violate  any  vested 
rights.  Ib. 

22.  Ori/anit-  act  —  '•limited b<j  Ian*."1     The  phrase,  "  limited  by  law,"  in  the  ninth 
section  of  the  organic  act  of  the  Territory,  means  that  the  mode  and  man- 
ner of  proceedings  may  be  controlled  and  governed  by  law.     tl  allay  har  v. 
/ifj.si'i/,  4~>7. 

li-'i.  itei>'-<ils  hi/  implication.  A  statute,  passed  subsequently  to  another  act 
which  is  incompatible  with  its  provisions,  repeals  by  implication  the  parts 
of  tin-  tirst  act  that  are  inconsistent  with  it.  United  State*  v.  One  Hundred 
and  nini'tij-six  ISuffalo  Hohcs,  48!J. 

24.  Organic   act  —  Indian   intercourse,  act — rights  of  settlers.      The  organic  act 
i.-rcating  the  Territory  of  Montana  gave  permission  to  people  to  come  to  the 
Territory   and    bring   the   necessaries   and    comforts   of    life,    and   thereby 
repealed  that  part  of  the  law  of  the  United  States  which  gives  agents  of  the 
Indian  department  the  power  to  expel   persons  from  the  Indian   country, 
and  prevent  citizens  from  bringing  within  the  Territory   the  necessaries 

of  life.  Ib. 

25.  Orfianic.ac.t, —  Indian  license.     The  organic  act  does  not  repeal  the  law  of  the 
United    States   which   requires   persons  to   obtain   a  license   to   trade  with 
Indians  in  the  Indian  country.    ll>. 

26.  Trc.ih/   ii'ith    lilai'kfoot   trihe  — Indian   country.     The    fourth    article   of   tho 
treaty  made  in  K">5  between  the  United  States  and  the  Blackfoot  tribe  of 
(ndians  ill  U.  S.  Stat.  657),  makes  that    portion  of  Montana  in  which  C'amp 
Cook  is  situated,  the  home  of  the  Blackfoot  nation,  and  it  is  Indian  country 
in  the  fullest  acceptation  of  the  term.   Ib. 

27.  Organic  act — rights  of  Indians.     The  first  section  of  the  organic  act,  relat- 
ing to  the  rights  of  Indians  in  this  Territory,  protects  the  rights  of  person 
and  property,  which    Indian  tribes  have  acquired  under  treaties  with  th« 
United  States.     Ib. 


748  INDEX. 

38.  Treaty  with  Blatkfoot  tribe — jurisdiction  of  Territory.  White  persons  liv- 
ing in  the  Indian  country  within  the  limits  of  Montana  are  subject  to  the 
laws  of  this  Territory.  The  clause  in  the  treaty  of  1855,  which  gives  ihe 
Indians  of  the  Blackf  oot  nation  the  exclusive  control  over  a  certain  region, 
was  adopted  to  prevent  the  United  States  from  interfering  with  the  cus- 
toms and  tribal  relations  of  that  nation.  Ib. 

29.  Organic  act  —  Indian  regulations.  In  the  proviso  of  the  first  section  of  the 
organic  act,  the  United  States  has  expressly  reserved  the  right  to  make 
regulations  respecting  the  Indians  within  this  Territory.  Ib. 

See  INTEREST  ;  MARRIED  WOMEN  ;  MECHANICS'  LIENS,  8. 

SUMMONS. 

Proof  of  service  —  affidavits.  The  service  of  a  summons  should  be  proved  by 
the  return  of  the  officer,  or  the  written  acknowledgment  of  the  party 
served.  It  is  improper  practice  to  establish  this  fact  by  the  affidavit  of 
persons  who  were  absent  when  the  service  was  made.  Brown  v.  Gaston, 
etc.,  M.  Co.,  57. 

SURETIES. 
See  ACTION  ;  ATTACHMENT  ;  EVIDENCE,  8 ;  REPLEVIN,  5,  7, 10, 12, 13, 15. 

SURVIVING  PARTNER. 
See  PARTNERSHIP.  6. 

TERRITORIAL  AUDITOR. 

1.  Appointment  by  governor  and  council.    Under  the  organic  act  of  this  Terri- 

tory, the  office  of  territorial  auditor  must  be  filled  by  the  governor,  who 
nominates  and,  by  and  with  the  advice  and  consent  of  the  legislative  coun- 
cil, appoints  a  person  to  fill  said  office.  Territory  ex  rel.  Fisk  v.  liodgerx,  252. 

2.  Statute  relating  to  election  of  auditor  void.     The  act  approved  November  16, 

1867,  which  provides  for  the  election  of  a  territorial  auditor  by  the  legisla- 
tive assembly  and  the  voters  of  the  Territory,  conflicts  with  the  organic  act 
and  is  void;  such  an  election  confers  no  right  upon  the  party  claiming  the 
office.  Ib. 

3.  Confirmation  by  council.     A  person,  who  has   been  nominated  by  the  gov- 

ernor to  fill  the  office  of  territorial  auditor,  has  no  right  thereto  until 
the  legislative  council  has  confirmed  the  nomination.  Ib. 

i.  Governor  cannot  Jill  certain,  vacancies  in  office.  The  governor  has  no  author- 
ity from  the  organic  act,  or  the  legislative  assembly,  to  fill  a  vacancy  in  the 
office  of  territorial  auditor.  Ib. 

5.  Office  of  territorial  auditor.  The  legislative  assembly  has  created  the  office  of 
territorial  auditor,  and  can  abolish  it.  Ib. 

TERRITORIAL  CONTRACT. 
See  TERRITORIAL,  WARRANT. 

TERRITORIAL  WARRANT. 

1.  How  paid.     A  territorial  warrant  duly  issued,  presented  for  payment  and 

"not  paid  for  want  of  funds,"  in  July,  1867,  and  subsequently  sold  by  the 
owner,  could  not  be  paid  by  the  Territory  in  money  or  taxes,  at  its  option, 
in  July,  1868.  LangJ'ord  v.  Kiny,  33. 

2.  No  contract  for  their  payment.    The  statute  in  force  in  July.  18C7,  giving  th« 

holders  of  territorial  warrants  the  right  to  pay  taxes  with  them,  was  not  a 
contract  that  they  should  be  so  paid.  Ib. 

3.  Validi.li/  of  act  relating  to  payment  of  /cures  in  money.    The  act  approved 

November  IS),  1867,  winch  deprives  the  holders  of  territorial  warrants  not 
issued  in  their  names,  of  the  right  of  paying  taxes  with  them,  is  constitu- 
tional. Ib. 

4.  When  holder  of  territorial  warrant  hax  a  vested  right.    The  holder  of  a  territo- 

rial warrant,  who  presented  it  in  payment  of  taxes  before  the  passage  of  the 
act  approved  November  19,  1867,  acquired  a  vested  right  to  pay  taxes 
with  it.  Ib. 

5.  Territorial  contracts  have  no  legal  obUf/ation.     A  citizen  cannot  sue  the  Ter- 

ritory and  enforce  its  conti'acts.  They  have  no  legal  obligation,  but  rest 
upon  the  good  faith  of  the  Territory.  Ib. 

TITLE. 
See  PLEADING,  20,  22. 


INDEX. 

TITLE  TO  LAND. 

Prior  appropriation.  The  first  appropriator  of  land  in  this  Territory  acquires 
a  title  to  the  same,  which  is  valid  against  all  persona  except  the  United 
States  and  its  grantees.  Parka  v.  Barkley,  514. 

TRADING  WITH  INDIANS. 

See  FORFEITURE  OF  GOODS. 

TRESPASS. 

Presumed  to  be  made  with  force.  The  law  implies  that  an  unauthorized  entry, 
upon  the  premises  of  another,  is  made  with  force,  and  no  evidence  of  such 
force  is  required.  Febea  v.  Tiernan,  179. 

See  ADMINISTRATOR;  PLEADING.  *• 

TRIAL. 

See  JURY. 

TRIAL  BY  JURY. 

L  A  trial  by  jury  is  a  trial  by  a  tribunal  of  twelve  men,  acting  only  with  unani- 
mity. Kleinschmidt  v.  Dunphy,  118. 

2.  The  constitution  does  not  secure  the  right  of  trial  by  jury  in  causes  of  equity 
jurisdiction,  and  the  legislature  of  this  Territory  possesses  the  power  to 
determine  the  number  of  jurors  that  can  render  a  verdict  in  the  trial  of 
issues  of  fact  arising  in  such  causes.  Ib. 

See  CONSTITUTIONAL,  LAW. 
TRUSTEE. 

Liability  for  personal  warranty  of  title.  The  grantors  of  a  warranty  deed,  who 
held  the  title  as  trustees  for  a  third  party,  to  whom  the  consideration  wa* 
paid,  are  liable  on  their  personal  covenants  in  the  deed.  Tot/lor  v.  Hotter. 
688. 

UNDERTAKING. 

See  ATTACHMENT,  4;  REPLEVIN*. 
UNDERTAKING  ON  APPEAL. 

See  ACTION. 

VACANCY. 
See  TERRITORIAL  AUDITOR. 

VENDOR  AND  VENDEE. 

See  AGREEMENT  FOR  BUYING  LAND. 

VENUE. 

L  Application  for  change.  The  act  of  the  legislature,  regulating  the  place  of 
trial  in  certain  cases,  approved  December  (J,  1807,  gives  a  party  the  right  to 
apply  for  a  change  of  the  venue  of  his  case  before  the  trial  actually  begins, 
although  such  application  has  been  made  and  denied  at  the  same  term  be- 
fore the  passage  of  this  act.  Godbc  v.  JfcCormicA-,  105. 

2.  Venue  act — jurisdiction.    This  act,  approved   December  6,  18G7.  affect*  the 

mode  of  procedure,  but  does  not  divest  the  district  courts  of  the  couimoii- 
law  jurisdiction  conferred  upon  them  by  the  organic  act  of  this  Territory. 
Ib.  ' 

3.  Validity  of  the  venue  statute.    This  act.  approved  December  G.  1807,  is  upon  a 

rightful  subject  of  legislation  anil  valid.    Ib. 

4.  When  changed  —  discretion  of  court.    The  application  for  the  change  of  the 

venue  in  this  action  was  not  addressed  to  the  discretion  of  tlie  court  below. 
The  statute  is  imperative,  and  the  application  should  have  been  granted 
upon  the.  payment  of  the  costs.  Ib. 

5.  Effect  of  ilt'nyinu  application.     If   a  court  erroneously  denies  a  motion  to 

change  the  place  of  trial,  the  subsequent  proceedings  in  the  case  are  void.  Ib. 


INDEX. 

VERBAL  STIPULATION. 
See  PRACTICE,  34. 

VERDICT. 
8ee  PRACTICE,  94. 

WAGES. 
See  MINING  PARTNERSHIP. 

WARRANT. 

See  COUNTY  WARRANTS  :  TERRITORIAL  WARRANTS. 

WATER-RIGHTS. 

L  Capacity  of  ditch.  The  measure  of  the  plaintiffs  right  to  water  iu  controversy 
in  this  case  is  the  number  of  inches  that  their  ditch  would  convey  from  the 
point  of  diversion  without  running  over  its  banks.  Coruthers  v.  Pemfoer- 
ton.  111. 

2.  Action  for  diversion  of  water  —  practice— judgment  on  verdict  on  the  material 
issue.  In  an  action  to  recover  damages  for  the  diversion  of  water  and  obtain 
decree  of  title  and  perpetual  injunction,  the  verdict  of  the  jury  that  plain- 
tiff is  entitled  to  the  water  is  a  finding  011  the  material  issue,  and  entitles 
him  to  a  judgment  for  costs  and  the  relief  sought.  Harris  v.  Shantz,  212. 

'•}.  Change  of  point  of  diversion.  If  H.  appropriated  the  water  of  a  creek  at  u 
certain  point  in  1865,  and  C.  appropriated  the  same  water  above  H.,  in  1867, 
for  the  use  of  a  mill,  and  returned  the  water  into  the  creek  so  that  H.  had 
the  benefit  thereof,  H.  has  no  right  to  change  his  point  of  diversion  of  the 
water  in  1869  and  appropriate  it  above  C.'s  mill,  and  thereby  deprive  C.  of 
the  use  of  the  water.  Columbia,  Mining  Co.  v.  Holier,  296. 

4.  Claim  to  water  —  appropriation — possession.     A  party  who  intends  to  claim 

water  must  appropriate  the  same  with  reasonable  diligence  by  some  known 
means,  and  at  a  certain  point ;  a  declaration  of  such  a  claim,  without  any 
acts  of  possession,  is  insufficient.  Ib. 

5.  Leyal  and  equitable  relief.     Legal   and  equitable  relief  cannot  be  obtained 

in  the  same  proceeding,  and  a  judgment  for  damages  for  the  diversion  of 
water,  and  which  perpetually  enjoins  parties  from  using  the  water,  is 
irregular  and  void.  Wool/man  v  (jarringer,  535. 

6.  Change  of  place  of  use  and  purpose-.     The    prior    appropriator    of  water 

for  mining  purposes  at  a  certain  point  can  extend  his  ditch  and  use  the 
water,  to  the  extent  of  his  appropriation,  at  any  other  point  for  the  same 
or  a  different  purpose.  Ib. 

7.  Date,    of    appropriation — diligence.      The      appropriation     of    water    by 

parties,  who  prosecute  the  work  on  their  ditch  with  reasonable  diligence, 
dates  back  to  the  commencement  of  the  work.  Ib. 

8.  Notice    of   change    of   use  by   appropriator.      The    prior    appropriator    of 

water,  who  posts  notices  of  his  appropriation  near  the  stream  and  immedi- 
ately constructs  his  dams  and  ditches,  is  not  required  to  give  any  actual 
notice  to  subsequent  appropriators  of  his  intention  to  extend  his  ditches. 
and  reclaim  the  waste-water  from  his  mining  operations,  and  use  the  water 
at  another  place.  Ib. 

9.  Subsequent     appropriator — abandonment.    The     subsequent   appropriator 
of    water,   who    acquires    the  privilege    of    using  the  waste-water  of  the 
prior  appropriator,  can  be  deprived  of  the  same  at  any  time,  unless  the 
water  has  been  returned  into  the  original  channel  without  any  intention 
of  7%ecapture.  Ib. 

10.  Prior    appropriator  —  quantity    and    qualit;/.      The    first    appropriator    of 
water  for  mining  purposes  is  entitled  to  the  same,  as  against  subsequent 
appropriators,  without  material  interruption  in  the  flow  thereof  in  quan- 
tity or  quality.  Atchison  v.  Peterson.  561. 

See  INJUNCTION,  I.  8;  GRANT;  LOCATION  OF  LAND;  PLEADING,  6;  STATU- 
TORY CONSTRUCTION,  6,  7,  9. 


C.  ¥.  NOYES 

Attorney  At  Law 
RYEGATE,  MONTANA 


Attorney 


A    001  166  729     2 


Attorney  At  a  .aw 

MONTANA 


C.  W.  NOYEf- 

Attorney  AtJ.aw 


